[2021] CCJ 5 (AJ) BB

IN THE CARIBBEAN COURT OF JUSTICE

APPELLATE JURISDICTION

ON APPEAL FROM THE COURT OF APPEAL OF BARBADOS

CCJ Civil Appeal No BBCV2020/002

BB Civil Appeal No 6 of 2010

BETWEEN

ESTATE OF MARJORIE ILMA KNOX

(Acting herein by EUGENE ESTWICK

JOHN KNOX who was appointed as her

personal representative for the purpose

of these proceedings by Order of Dr the

Hon Justice Olson Alleyne made on the

10th day of October 2018)

AND

APPELLANT

JOHN VERE EVELYN DEANE FIRST RESPONDENT

ERIC ASHBY BENTHAM DEANE

Deceased, acting herein by RICHARD

BASIL MARK DEANE duly substituted

by Order of the Hon Madam Justice

Sandra P Mason JA made on the 27th day

of February 2013

SECOND RESPONDENT

OWEN BASIL KEITH DEANE THIRD RESPONDENT

ELIZABETH TESS ROHMANN FOURTH RESPONDENT

LYNETTE RACHEL DEANE FIFTH RESPONDENT

MURIEL EILEEN DEANE SIXTH RESPONDENT

OWEN GORDON FINDLAY DEANE SEVENTH RESPONDENT

ERIC IAIN STEWART DEANE EIGHTH RESPONDENT

KINGSLAND ESTATES LIMITED NINTH RESPONDENT

CLASSIC INVESTMENTS LIMITED TENTH RESPONDENT

PHILLIP VERNON NICHOLLS ELEVENTH RESPONDENT

Before the Honourable: Mr Justice A Saunders, PCCJ

Mr Justice J Wit, JCCJ

Mme Justice M Rajnauth-Lee, JCCJ

Mr Justice D Barrow, JCCJ

Mr Justice P Jamadar, JCCJ

Appearances

Mr Alair Shepherd QC, Mr Philip McWatt and Ms. Sumaya Desai for the

Appellant

Ms Doria Moore for the Second Respondent

Mr Leslie Haynes QC and Mr Kashawn Wood for the Ninth Respondent

Mr Barry Gale QC and Mrs Laura Harvey-Read for the Tenth Respondent

Practice and Procedure – Attachment (Garnishee order) – Whether judge used correct

procedure in making order - Third party rights – Whether appellant entitled to assert

interest of third parties – Whether court erred in finding debt owed could be set off.

Constitutional law – Constitution – Judiciary - Exercise of judicial power after

demitting office - Judgment pronounced by the Court of Appeal after two judges of

hearing bench resigned - Whether former judges lack authority to concur in judgment

– Whether judgment a nullity - Constitution of Barbados 1966, s 84(2)(b).

Constitutional law – Separation of powers – Executive and judicial powers - Former

judge of Court of Appeal appointed to Office of Governor General - Judgment

pronounced after assumption of office – Whether separation of powers principle

breached – Whether court independent and impartial.

Constitutional law – Fundamental rights – Right to a fair hearing within a reasonable

time – Delay – Judgment – Delay of four years in delivery of judgment – Whether

delay prejudiced the Court’s ability to deliver judgment – Whether delay unacceptable

– Constitution of Barbados 1966, s 18.

Marjorie Ilma Knox, deceased (“Knox”), was a judgment debtor of the respondents by

virtue of a court order to pay them costs (“the costs”) in different amounts. Payment

of the costs remained outstanding, and the respondent Kingsland Estate Ltd. (“KEL”)

became indebted to Knox, one of its shareholders, on account of dividends due to

Knox. On the application by the various respondents for a garnishee or attachment

order against the costs, the trial judge ordered that the costs should be satisfied by

attaching the dividends, due by KEL to Knox. One of the amounts the judge ordered

to be satisfied from the dividends was the amount Knox owed to KEL as part of the

costs. The trial judge ordered that KEL could ‘set off’ this sum against its obligation

to pay dividends to Knox. Knox appealed.

The Court of Appeal took some four years to deliver its judgment. During this time

two of the justices of appeal who heard the appeal, Mason JA and Burgess JA,

demitted office. Mason JA became Her Excellency the Governor General of Barbados

and Burgess JA became a judge of this Court. The judgment of the Court of Appeal

was pronounced on 26 June 2020. The Court dismissed Knox’s appeal against the

attachment order. Both retired judges concurred with the reasons and the result and

signed the judgment.

Knox appealed to this Court on two procedural grounds, concerning the steps taken by

the judge in making the order for attachment and the order for ‘set off,’ and on one

constitutional ground, concerning the right to a fair trial, judicial delay and the

separation of powers.

On the procedural grounds, Knox submitted that the trial judge erred by failing to order

that certain identified third parties should be served with the application. Knox

asserted that the third parties owned the beneficial interests in the dividends. None of

the third parties ever made an application to intervene in these proceedings. In respect

of the alleged third-party rights, the Court, in a judgment authored by Barrow JCCJ,

found that the Court of Appeal correctly decided that the trial judge was right to refuse

service of the application on the third parties. Such an order would needlessly have

delayed the substantive application for the attachment order that was before the judge.

Knox was not entitled to apply to ‘join’ them ‘as interveners,’ nor advance arguments

on their behalf. In respect of the order that KEL could ‘set off’ the debt owed to it by

the appellant, the Court found that KEL was entitled, as of right, to withhold what

Knox owed to KEL from what KEL owed to Knox and it did not matter that the judge

used the term “set off”. The Court found that on both procedural grounds the appeal

fails.

In respect of the constitutional ground, Knox argued that the Court of Appeal’s

judgment was a nullity because the authority of the retired judges to act as appellate

judges had expired and they had not re-taken the oath of judicial office before delivery

of the judgment. Knox also argued that since, at the time the judgment was delivered,

the former Mason JA had become the Governor General, this meant the Bench that

gave the decision was not an independent and impartial tribunal as it then comprised

a member of the Executive branch of government. This circumstance, it was said,

created a breach of the separation of powers principle.

The Court, in a judgment authored by Saunders PCCJ, found that Section 84(2)(b) of

the Constitution empowers a person to sit as a Judge for the purpose of delivering

judgment or doing any other thing in relation to proceedings which were commenced

before them before they resigned, without re-appointment or re-taking of the judicial

oath. The Court found that the principle of separation of powers was not breached and

the Court of Appeal was independent and impartial. Everything that was done in

relation to the judgment by the former Mason JA was done by her not in her capacity

of Governor General but rather as a former judge. There was no evidence to suggest

that the former judge channeled any executive authority or exercised any executive

power or discretion. The act of affixing her signature to a judgment in respect of

proceedings that were commenced before a Bench that included her while she was a

judge of the Court of Appeal did not breach the separation of powers principle or the

judicial independence provisions of the Constitution and was specifically catered for

by Section 84(2)(b) of the Constitution. The Court found that on the constitutional

ground the appeal also fails.

The Court, however, commented that the delay by the Court of Appeal in delivering

the judgment was serious and unacceptable but found that the delay did not prejudice

the ability of the Court of Appeal to render its decision.

In a concurring judgment Jamadar JCCJ commented on sections 18 and 84 of the

Constitution of Barbados as they relate to delay in the delivery of judgments, finding

that based on an outer time standard of reasonableness for the delivery of judgments

of six months, this delay of four years was unacceptable. In cases such as this, the

minimum that should be done is to offer an explanation to the parties for the delay and

an appropriate apology not that these could exempt the default, but maybe they could

rescue in some small measure public trust and confidence in the administration of

justice in Barbados.

The appeal was therefore dismissed.

Cases referred to

Ahnee v DPP [1999] 2 AC 294; Attorney General of Guyana v Richardson [2018] CCJ

17 (AJ), (2018) 92 WIR 416; August v R [2018] CCJ 7 (AJ), [2018] 3 LRC 552; Bata

Shoe Company v CIR (Guyana HC, 15 January 1975); BCB Holdings Ltd v The Attorney

General of Belize [2013] CCJ 5 (AJ), (2013) 82 WIR 167; DPP v Mollison [2003]

UKPC 6, (2003) 64 WIR 140; Green Browne v R [2000] 1 AC 45; Griffith v R [2004]

UKPC 58, (2004) 65 WIR 50; Hinds v The Queen [1977] AC 195; Knox v Deane [2005]

UKPC 25, (2005) 66 WIR 104; Knox v Deane [2012] CCJ 4 (AJ), (2012) 80 WIR 71;

Knox v Deane [2020] CCJ 5 (AJ) BB; Knox v Deane (Barbados CA, 26 June 2020);

Martin v Nadel [1906] 2 KB 26; Orozco v The Attorney General [2020] 2 LRC 501; R

v Bow Street Magistrates Ex p Pinochet (No 2) [2000] 1 AC 119; R v Home Secretary

Ex p Fire Brigades Union [1995] 2 AC 513; Reid v Reid [2008] CCJ 8 (AJ), (2008) 73

WIR 56; Scantlebury (Mormon) v R (2005) 68 WIR 88; Singh v Attorney General

[2018] CCJ 3 (AJ); Sookar v The Attorney General (Trinidad and Tobago HC, 4

November 2014); Sookar v The Attorney General (Trinidad and Tobago CA, 28

October 2020); The State v Khoyratty [2006] UKPC 13, [2007] 1 AC 80; Zuniga v

Attorney General of Belize [2014] CCJ 2 AJ, (2014) 84 WIR 101

Legislation referred to

Bahamas - Constitution of the Commonwealth of the Bahamas, Rev Ed 2000;

Barbados - Companies Act Cap 308, Constitution of Barbados, Rev Ed 1971,

Supreme Court of Judicature Act Cap 117A; Canada - Judicature Act RSNS 1989, c

240, Supreme Court Act RSBC 1966, c 443; United Kingdom - Judicial Pensions and

Retirement Act 1993, c 8

Other Sources referred to

McIntosh S, Caribbean Constitutional Reform: Rethinking the West Indian Polity

(Caribbean Law Publishing Co 2002); Robinson T, Bulkan A and Saunders A,

Fundamentals of Caribbean Constitutional Law (Sweet & Maxwell 2015); Rules of

the Supreme Court of Judicature 1982 (Barbados); Supreme Court (Civil Procedure

Rules) 2008 (Barbados)

JUDGMENT

of

The Honourable Mr Justice Saunders, President and The Honourable Justices

Wit, Rajnauth-Lee, Barrow and Jamadar

Delivered by

The Honourable Mr Justice Barrow

and

The Honourable Mr Justice Saunders, President

and

CONCURRING JUDGMENT

of

The Honourable Mr Justice Jamadar

Delivered on the 29th day of April 2021

JUDGMENT OF THE HONOURABLE MR JUSTICE BARROW, JCCJ:

[1] The true subject matter of this appeal is the enforcement of a Privy Council order

for the payment of costs made against the appellant, Marjorie Ilma Knox,

deceased, which Worrell J ordered should be satisfied by attaching a debt

(formerly known as a garnishee order) due to her in the form of dividends payable

by Kingsland Estate Ltd (KEL), the ninth respondent (the garnishee). The

determination of the appellant to thwart the efforts to collect the award of costs

of £247,500, which was registered as an order of the Supreme Court of Barbados,

has produced further litigation steps involving 11 respondents, three Queens

Counsel, a commensurate number of juniors and instructing attorneys at law,

spanning more than a decade, that are out of proportion to the objective value of

the true subject matter of this appeal.1

[2] The grounds of the appeal that has come to this Court encompass three issues,

two of which concern the procedure used by the judge in making the order for

attachment and will be considered first. The third issue raises a matter of

fundamental constitutional law relating to the right to a fair trial, judicial delay,

and the separation of powers, commanding deeper consideration. The two

procedural issues were that the Court of Appeal was wrong in upholding the

attachment order of the trial judge who allegedly erred in refusing to consider the

claims of third-party beneficiaries to the attached debt and also allegedly erred in

ordering that KEL could set off, against its obligation to pay dividends of

$749,692.50 to the appellant, the claim of KEL itself for $284,016.75 from the

appellant. These procedural issues call for no summary of background facts.2

Third party rights

[3] The order for the attachment of the debt due to the appellant from KEL, the

garnishee, was made by Worrell J on an application by three of the respondents,

1 See Knox v Deane [2012] CCJ 4 (AJ), (2012) 80 WIR 71 at [11] for a reference to the ‘five other actions

in the courts of Barbados in which the courts have made orders for costs against Mrs. Knox in connection

with Kingsland Estate’. 2 For some background information, see the judgment of the Court of Appeal of Barbados in Knox v

Deane (Barbados CA, 26 June 2020) as well as the judgment of the Privy Council in Knox v Deane

[2005] UKPC 25 and of this Court in Knox v Deane [2012] CCJ 4 (AJ), (2012) 80 WIR 71.

namely, Respondents numbers two, nine and ten.3 As indicated, the sums due

were by way of the award of costs and were in the amounts of $228,266.76 for

respondent number two, $173,452.70 for respondent number 10 and $284,016.75

for KEL (respondent number nine). The procedure for the attachment of debts is

now contained in Part 50 of the Supreme Court (Civil Procedure Rules) 2008

(CPR 2008).4 The particular provision that this Court must consider is, in

substance, Part 50.11, which states:

Claim to a debt by person other than judgment debtor

50.11. (1) This rule has effect where the court is aware from information

supplied by the garnishee or from any other source that someone other than

the judgment debtor

(a) is or claims to be entitled to the debt; or

(b) has or claims to have a charge or lien over or on it.

(2) In this rule, “lien” means a right to retain possession of goods to

protect a debt.

(3) Where this rule has effect, the court may require the judgment

creditor to serve on any person who may have such an interest as is

set out in sub-rule (1) notice of

(a) the application for an attachment of debt order; and

(b) any hearing fixed by the court.

(4) The notice must be served personally unless the person is a body

corporate, or the court directs otherwise.

(5) Notice must also be served on

(a) the garnishee; and

(b) the judgment debtor.

(6) A notice under this rule must contain a warning to every person

on whom it is served that if he does not attend court, the court may

proceed to decide the issue in his absence.

[4] The appellant had urged the judge to order certain identified persons to be served,

pursuant to the principle in Part 50.11 (3), because the beneficial interest in the

dividends was owned, she asserted, by those third parties under four instruments,

3 Respondents numbers 2, 3, 7 and 11 had assigned their awards of costs to KEL (Respondent number

nine) and Respondents numbers one, four, five and six had assigned their awards of costs to Respondent

number two. 4 As a matter of accuracy, at the time the application was made Order 49, r 6 of the Rules of the Supreme

Court 1982 (RSC) applied, because these were ‘old proceedings,’ in the language of Pt 73.3 of CPR

2008, to which those latter Rules did not apply. The record of appeal reveals that over the years that the

proceedings spanned, CPR 2008 came to be applied.

the particulars of which are not presently material.5 Worrell J was aware of the

existence of these instruments since he adverted to them in considering the

application for service on the third parties benefitting under those instruments.

The judge refused to order such service or adjourn the proceedings but did not

give reasons for his decision. The Court of Appeal declined to reverse the judge

on the point, for the reason that the alleged passing of the beneficial interest in

the dividends under the instruments was not binding on KEL, whose legal

obligation under s 179 of the Companies Act was to pay the dividends to the

registered shareholder without reference to any trust. In that court’s view, there

was no reason for Worrell J to have added them as parties to the proceedings --

which, with respect, was not quite the order the appellant sought; the appellant

applied for the rather novel order ‘to join’ them as ‘interveners.’ That confusion

does not matter, however, because the determination that the third parties had no

claim as against KEL for payment of the dividends was also good reason for

refusing ‘to join’ them as ‘interveners.’

[5] Before this Court, counsel for the appellant acknowledged that the appellant

remained the legal owner of the shares and, hence, of the right to the dividends.

However, he insisted that the alleged rights to the dividends of the alleged

beneficial owners should have been recognized and, more to the point, that it was

unfair to those persons and a breach of the constitutional right to a fair hearing

for the judge to refuse to order that notice of the proceedings be served upon them.

This stance raised two basic concerns: why should the Court hear representations

from counsel for the appellant about ordering service upon the holders of these

alleged beneficial rights when these persons have steadfastly refrained from

making representations to any court? And why should the Court permit counsel

for the appellant to argue the existence of these rights of others, which were not

the rights of his client? In short, what business of the appellant was it -- even if

the judge had erred in deciding not to order service?

5 For information about these instruments, see the discussion at [18]-[22] of the judgment of the Court

of Appeal in Knox v Deane (Barbados CA, 26 June 2020) and the summary of Nelson JCCJ in Knox v

Deane [2012] CCJ 4 (AJ), (2012) 80 WIR 71 at [5].

Who may apply?

[6] In relation to the first concern, why this Court should hear from counsel for the

appellant and not the third parties, counsel argued that the effect of the judge

having refused to order service on the third parties was to exclude them from

making representations, so it was left to the appellant to pursue the point. Counsel

referred to no principle or authority for the proposition that the judge’s decision,

refusing the appellant’s application, was binding on the third parties who were

not parties to that application. Nothing was identified that prevented the third

parties from, subsequently, making their own application. It is elementary that it

is the holder of a right or status who has the standing to assert it before a court,

and that a person who does not hold the right or status has no standing or right to

be heard. This Court would readily conclude that the judge must have decided, as

indeed was the right decision, that he had no proper basis for acceding to the novel

application by the appellant to join ‘interveners,’ when there was no application

for leave to intervene or to be heard by the proffered interveners. Such an order

would needlessly have delayed the substantive application for the attachment

order that was before the judge.

[7] In fine, it appears that nothing prevented the third parties from applying to be

heard to assert their alleged claim to the dividends. This Court, therefore, is

simply left to proceed on the basis that these persons have chosen not to assert

their alleged rights in these proceedings and need not speculate as to the reason

for this inanition.

Double payment

[8] On the question whether it was right for the Court to entertain argument from the

appellant asserting the interests of third parties, counsel relied on Martin v Nadel6

for the proposition that payment by a garnishee of a debt to one creditor could

leave the garnishee liable to pay the same debt to another creditor, even if the first

payment was made in compliance with a court order. Applied to the facts of this

case, counsel submitted, the judge should not have made the order to pay the

6 [1906] 2 KB 26.

attached dividends to the respondents because that order did not extinguish the

right of the beneficiaries to payment of the same dividends.

[9] The submission is nimble but does not withstand scrutiny. In Martin v Nadel7 the

judgment debtor had deposited a sum of money with the Berlin branch of a bank

and, on the strength of that deposit, obtained from the bank’s London branch a

guarantee from the bank to pay an equivalent sum, should the court in England

make an award of costs in pending litigation against the judgment debtor. Such

an award was made in favour of the judgment creditor, and the bank satisfied the

award. There remained a balance of the amount deposited in Berlin, due as a debt

from the bank to the judgment debtor. The judgment creditor obtained, in

England, an attachment order against the London branch to pay to the judgment

creditor the balance held at the Berlin branch which, as mentioned, was a debt

due from the bank to the judgment debtor. The bank, the garnishee, appealed

against the making of that attachment order because, they argued, if the bank

complied with the attachment order in England the bank would remain liable, in

Berlin, to pay that same sum to the judgment debtor that their London branch

would have paid to the judgment creditor. The bank succeeded in getting the

attachment order set aside because the English court of appeal accepted, as a

matter of international law, that payment in England, even pursuant to a court

order, did not relieve the bank from the obligation to pay the debt in Berlin, which

existed under the law in Berlin. It was, therefore, inequitable to have made the

attachment order and leave the bank, the garnishee, liable to pay the sum twice.

[10] The facts in that case are clearly distinguishable from the facts in this case. In that

case the liability to pay twice would have been imposed on the bank, the

garnishee. Thus, it was the bank which resisted the attachment order because they

would be the ones who would have had to pay, in Berlin, the debt due to the

judgment debtor, the amount of which they would have paid already in England.

In this case, the attachment order is for KEL, the garnishee, to pay a portion of

the dividends to the respondents (including itself). KEL is clearly satisfied that it

has no obligation to pay the dividends to the beneficiaries as opposed to the

7 ibid.

appellant. Therefore, KEL is not concerned that it may have to pay, a second time,

to the beneficiaries, the dividends it has been ordered by Worrell J to pay to the

respondents. If there had been any such concern it would have been for KEL, the

garnishee, to raise. The appellant is in no position to complain of inequity or

unfairness.

Set off

[11] The challenge of the appellant that the trial judge erred in ordering that KEL could

‘set off’ the debt owed to it by the appellant against the dividends due from it to

the appellant deserves short shrift. This is seen immediately by substituting in the

judge’s order the word ‘withhold’ for the words ‘set off.’ The existence of the

respective debts was never in issue. Nothing could have been simpler to

understand than that KEL owed the appellant $749,692.50 in dividends and the

appellant owed KEL $284,016.75 for costs. There has been no suggestion that

KEL was not entitled to withhold what the appellant owed to KEL, from what

KEL owed to the appellant. Indeed, the judge had no need to use the term ‘set

off’; he simply could have ordered that the dividends be attached with the

obligation to pay the debt due to KEL.

[12] Instead of guiding themselves by this straightforward proposition, the attorneys

at law for the appellant chose to make submissions, even if faint, on the nature of

a set off and its unavailability in an application for attachment. It really was a

pointless exercise, because the appellant well knew that what entitled KEL to

withhold the sum due to it was not the order of the trial judge. That order was

substantially (and no more than) the judge’s acknowledgment and acceptance of

KEL’s right to the sum. What entitled KEL to withhold the sum owed to it was

that KEL had a legal right to that sum, as a debt due and payable pursuant to a

court order. It was not a right conferred by the judge; it was a right that existed in

fact and in law. As stated, the judge could have simply attached the dividends

with payment of the debt due to KEL.

[13] It makes no difference to consider counsel’s submission, that by making the

attachment order the judge converted what was a mere withholding into the legal

vesting of the ‘set off’ sum in KEL. Even if that was accurate, the attachment

order simply puts the ‘set off’ sum into the same category as the other sums for

which the dividends were attached. It follows that this would be equally a matter

for the alleged beneficiaries to have challenged and not the appellant.

[14] On both procedural grounds the appeal fails. This leaves for determination the

constitutional ground.

The constitutional issues

[15] It is distressing that the foundation of the appellant’s grounds of appeal, alleging

the infringement of constitutional rights and principles, is the excessive delay of

the Court of Appeal in delivering the judgment that is now appealed to this Court.

This Court has spoken out strongly against instances of this failure by our courts

in the past8 and there can be no doubting our stand on the matter of delay.

Therefore, it is appropriate to address it with the restraint that is shown in the

opinion of Saunders PCCJ, which deals with all aspects of the constitutional

grounds, and with which I fully concur.

JUDGMENT OF THE HONOURABLE MR JUSTICE SAUNDERS, PCCJ:

[16] I endorse fully the judgment of Mr Justice Barrow and wish to add the following

on the issues relating to judicial independence and the separation of powers.

Introduction

[17] The relevant uncontested facts are that the Court of Appeal heard this case on

25 May 2016 and pronounced its judgment some four years later. The hearing

Bench in 2016 comprised the Chief Justice, Mason JA, and Burgess JA.

Madame Justice of Appeal Mason demitted office as a judge of the Court of

Appeal and assumed the post of Governor General of Barbados on 8 January

2018. Burgess JA also resigned from the court in order to take up an

appointment as a judge of this Court on 18 January 2019. The Court of Appeal’s

judgment was pronounced on 26 June 2020 and delivered to the parties on that

8 Singh v Attorney General [2018] CCJ 3 (AJ) at [60] – [61] and the cases cited in (n 26).

date. Apart from the Chief Justice’s signature, the judgment also bore the

signatures of Justices Mason and Burgess. Each of them concurred in the

reasons and the result set out by the Chief Justice.

Submissions of the Appellant

[18] Mr Shepherd’s arguments on behalf of the appellant may be summarized in the

following way. Firstly, he submitted that the Court of Appeal’s judgment is a

nullity because the authority of the retired judges to act as appellate judges had

expired and they had not re-taken the oath of judicial office before delivery of

the judgment. He also stated that, as those judges were not present in court on

the 26 June 2020, the judgment was not delivered by a validly constituted Court

of Appeal. These points may be framed in the form of two questions: Was the

judgment a nullity because the retiring judges were not present in court on the

date the judgment was pronounced? Did they lack authority to concur in the

judgment?

[19] Secondly, counsel rightly submits that the delivery of judgment is an essentially

judicial function and that the Constitution mandates that courts in Barbados be

independent and impartial.9 It was suggested that, since, at the time the

judgment was delivered, the former Mason JA had become the Governor

General, the Bench that gave the decision was not an independent and impartial

tribunal as it then comprised the most exalted official of the Executive branch

of government. This circumstance, it was said, created a breach of the separation

of powers principle and it is now well established that courts will strike down

or declare unconstitutional acts that amount to a breach of that principle.10

Counsel urged the Court, on that account, to declare void the judgment given

by the Court of Appeal.

9 See s 18(8) of the Constitution of Barbados. 10 Green Browne v R [2000] 1 AC 45; DPP v Mollison [2003] UKPC 6, (2003) 64 WIR 140; Griffith v

R [2004] UKPC 58, (2004) 65 WIR 50; Scantlebury (Mormon) v R (2005) 68 WIR 88; The State v

Khoyratty [2006] UKPC 13, [2007] 1 AC 80; BCB Holdings Ltd v The Attorney General of Belize [2013]

CCJ 5 (AJ), (2013) 82 WIR 167; Zuniga v Attorney General of Belize [2014] CCJ 2 AJ, (2014) 84 WIR

101; August v R [2018] CCJ 7 (AJ), [2018] 3 LRC 552.

[20] In support of his arguments counsel cited several authorities including Orozco

v The Attorney General,11 August v R,12 Hinds v The Queen,13 Ahnee v DPP,14

The State v Khoyratty,15 DPP v Mollison,16 R v Home Secretary Ex p Fire

Brigades Union,17 R v Bow Street Magistrates Ex p Pinochet (No 2),18 and

Attorney General of Guyana v Richardson.19

Was the judgment a nullity? Did Mason JA and Burgess JA lack authority to

concur in the judgment?

[21] The mode of delivery of judgment is governed partly by statute. Naturally, as

long as the judicial branch observes the statute, it is entitled itself to fill in any

apparent gaps. The relevant provisions of section 60 of the Supreme Court of

Judicature Act20 states:

(1) …

(2) …

(3) On any appeal to the Court of Appeal, the judgment or opinion of

the Court shall be pronounced as follows:

a. If the President of the Court is taking part in the hearing of

the appeal, by the President of the Court or such other Justice

of Appeal taking part in the hearing of the appeal as the

President of the Court directs;

b. …

(4) Any member of the Court of Appeal taking part in the hearing of an

appeal may deliver a separate judgment or opinion concurring in or

dissenting from the judgment or opinion

a. of the Court; or

b. of any other member of the Court taking part in the hearing

of the appeal.

[22] There was nothing done on 26 June 2020 that contravened this statute in the

slightest. Nor was what done violative of any rule of court practice. It is routine

for judgments of the Court of Appeal to be pronounced and issued in the absence

11 [2020] 2 LRC 501. 12 [2018] 3 LRC 552. 13 [1977] AC 195. 14 [1999] 2 AC 294. 15 [2006] UKPC 13. [2007] 1 AC 80. 16 [2003] UKPC 6. (2003) 64 WIR 140. 17 [1995] 2 AC 513. 18 [2000] 1 AC 119. 19 (2018) 92 WIR 416. 20 Cap 117A (Barbados).

of a member of the hearing Bench who had since retired. Nothing is irregular

about such practice. What is critical is that the judgment should be - a) signed

by all the participating judges; b) pronounced by the President of the Court

taking part in the hearing of the appeal, or such other Justice of Appeal taking

part in the hearing of the appeal as the President of the Court directs, c) issued

and delivered to the parties and d) made publicly available unless the ends of

justice or valid privacy reasons require otherwise. All four requirements were

observed in this case.

[23] Section 84(2)(b) of the Constitution is directly relevant to the circumstances of

this case. That section states:

(2) Notwithstanding that [a judge]…

(b) has retired or resigned before reaching [retirement] age, a person

may sit as a Judge for the purpose of delivering judgment or doing any

other thing in relation to proceedings which were commenced before

him before he attained that age or, as the case may be, retired or resigned.

[24] We agree with the analysis made of this section by the courts in Trinidad and

Tobago. In Sookar v The Attorney General21, Rahim J carried out an assessment

of s 84(2)(b) and comparable legislation found elsewhere in the

Commonwealth. Similar provisions are to be found, for example, in the

Constitution of The Bahamas,22 and legislation from Nova Scotia,23 British

Columbia24 and the United Kingdom25. In Sookar, Rahim J was at the time faced

with a challenge to the judgment of a trial judge in Trinidad and Tobago who

had heard a case, retired and was re-appointed as a judge to deliver judgment in

the case.

21 Trinidad and Tobago HC, 4 November 2014 at [45] – [57]. 22 The Bahamas Constitution s 95(2). 23 Judicature Act RSNS 1989, c 240, s 36(1). 24 Supreme Court Act, RSBC 1966, c 443, s 6(1). 25 Judicial Pensions and Retirement Act 1993 (UK) s 27(1)(a) and (b).

[25] The Trinidad and Tobago Court of Appeal, hearing the appeal from the

judgment of Rahim J26, rightly endorsed his view that the provisions in question

expressly permit the delivery of judgment by a former judge without re-

appointment or re-taking of the judicial oath. The Court of Appeal noted that:

These provisions do not require that an oath be resworn … Indeed, the

Barbados Constitution - sections 82(4) and 84(2) - provide for both an

acting judge whose temporary appointment expires before delivery of

judgment and a permanent judge who resigns or retires, to deliver

judgments subsequent to the expiry of their term or subsequent to

resignation or retirement, without the need for any further appointment.

[26] Subject to what is stated later on the separation of powers point, s 84(2)(b)

anticipates and provides a complete answer to the substance of Mr Shepherd’s

first argument. It is expected, however, that judges will, where possible, make

every effort to arrange their affairs in such a manner that resort to s 84(2)(b) will

be infrequent. This is naturally much more easily accomplished by a retiring

trial judge than by a judge of a collegiate court. The desire and ability of retiring

appellate judges to complete all their judicial business before retirement may

sometimes be thwarted by matters beyond their control.

Was the separation of powers principle breached? Was the court not impartial?

[27] It is not accurate to say, as was repeatedly trumpeted during the appeal, that

either Mason JA or Burgess JA “sat” to deliver the judgment on the 26 June

2020. Neither was in court when the judgment was pronounced, but it is the fact

that the judgment bore their respective signatures. They each concurred in the

judgment of the Court delivered by the Chief Justice. The distinction between

affixing one’s signature to the judgment and sitting in court when the judgment

is pronounced may be regarded as insubstantial, but these nuances are not

unimportant. The value of judicial impartiality is concerned not only with

substance but, sometimes even more pervasively, with appearance.

26 Sookar v The Attorney General (Trinidad and Tobago CA, 28 October 2020) at [32] and [38].

[28] Unlike the principle of judicial independence, nowhere is there to be found in

the Constitution any explicit affirmation of the separation of powers principle.

But no one doubts its existence and centrality to the rule of law. Professor

Simeon McIntosh regarded the separation of powers as one of the most endorsed

doctrines of Caribbean constitutional law.27 The principle references the

dispersion of the powers of the State among its Executive, Legislative and

Judicial arms or branches. The principle is not peculiar to Constitutions and

States that are based on a “Westminster model”. Nor does the existence of the

principle derive from the circumstance that a Constitution may conveniently

devote distinct chapters to each of the three arms of government. The principle

and its paramountcy are necessarily, inexorably implied because they are so

fundamental to reinforcing the sovereignty of law over arbitrariness. Like

judicial independence, the separation of powers is an inherent, overarching

element of the rule of law, embraced by liberal democracies as such. By

preventing the concentration of power in one body, and in insisting on an

independent judiciary, observance of the principle is ‘a bulwark against

tyrannical rule’.28

[29] For the levers of the machinery of the State to turn smoothly, efficiently,

effectively, all three branches of government must operate in a mutually

supportive manner. Each must respect the authority and province of the other.

But the edges of their respective boundaries are indistinct and it is expected that

there will be overlaps both among their respective responsibilities29 and in the

discharge of the same. A breach of the separation of powers principle does not

therefore automatically occur because one branch does something that enters

the sphere of another. For example, as was stated in August30, the separation of

powers principle is implicated whenever Parliament prescribes a mandatory

sentence. But it is not on every occasion that Parliament does so might a court

be justified in striking down the measure. A breach of the principle is more

27 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (Caribbean

Law Publishing Co 2002) 172. 28 See Tracy Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitutional

Law (Sweet & Maxwell 2015) [7-002]. 29 ibid [7-003]. 30 August v R [2018] 3 LRC 552 at [135].

clearly evident when there is no redeeming feature to a direct impingement by

one branch upon the essential functions of the other,31 or worse, when one

branch attempts to swallow up the whole of the power of another.32 A

determination as to whether either event has occurred is made by the courts after

a careful assessment of all the facts and circumstances.

[30] So, we return to the relevant facts and circumstances in this case? We can add

to the list of them, identified above at [17], two more circumstances. Firstly, this

is not a case in which the Crown is either a party to or a stakeholder in the

outcome of this litigation. Secondly, we do not know (and admittedly it may be

impossible for a litigant to know) the date when the Court of Appeal Bench

decided this matter as distinct from the date when that decision was reduced to

writing, dated or pronounced.

[31] Given all the known facts and circumstances, can one say here that, by

concurring in the judgment that was dated and delivered on 26 June 2020, the

Executive arm of government had impinged directly upon the essential

functions of the Court of Appeal? Did Executive power swallow up or usurp the

powers of the Court of Appeal? It should be self-evident that neither of these

two questions can fairly be answered in the affirmative. Everything that was

done by the former Mason JA was done by her not in her capacity of Governor

General but rather that of a former judge specifically clothed by s 84(2)(b) with

the capacity and authority to exercise limited judicial powers notwithstanding

their resignation from the court.

[32] The Governor General of Barbados is not the Queen. Her Excellency is a

representative of the Queen with powers and authority carefully circumscribed

by the Constitution. In order to channel Executive authority, the Governor

General must normally act in accordance with the advice of the Cabinet or a

Minister acting under the general authority of the Cabinet.33 There are limited

31 BCB Holdings v AG (2013) 82 WIR 167 at [43]. 32 Bata Shoe Company v CIR (Guyana HC, 15 January 1975). See also Robinson (n 28) [7-008]. 33 See s 32 of the Constitution of Barbados.

circumstances when that official is empowered to act in her own discretion,34

but signing a judgment is certainly not one of them.

[33] For all these reasons it is entirely misleading to suggest that the office of the

Governor General concurred in the judgment. No Executive power or discretion

was exercised here, either in the course of the Court of Appeal’s decision-

making process or the judgment delivery process. The only material put forward

is that the signature of the person occupying the office of Governor General, a

former judge, was affixed to a judgment in respect of proceedings that were

commenced before a Bench that included her while she was a judge of the Court

of Appeal. This action by itself alone breaches neither the separation of powers

principle nor the judicial independence provisions of the Constitution. Indeed,

as this Court stated in a previous judgment,35 such conduct is specifically

catered for in and sanctioned by s 82(4)(b) of the Constitution.

[34] It is unnecessary and perhaps unwise to speculate on what might have been the

case if a particular fact in existence here were not present or if some

circumstance not in existence were present. If and when that case presents itself

the court will make the appropriate assessment in light of the facts.

[35] In all the circumstances the Court dismisses the submissions on these points so

crisply made by Mr Shepherd.

Delay

[36] It would be remiss of this Court if we failed to comment on the serious delay in

the delivery of judgment by the Court of Appeal. Section 18 of the Constitution

requires that litigants should be afforded a fair hearing within a reasonable time.

In Reid v Reid, commenting on a delay in the giving of judgment of almost five

years, this Court stated that “as a general rule no judgment should be

outstanding for more than six months and, unless a case is one of unusual

34 See for example ss 36, 65, 67, 74, 75, 77 and 78 of the Constitution of Barbados. 35 See Knox v Deane [2020] CCJ 5 (AJ) BB at [26].

difficulty or complexity, judgment should normally be delivered within three

months at most.”36

[37] No suggestion has been made that the delay in this case prejudiced the ability

of the Court of Appeal to render its decision in the manner in which it did. There

is no evidence that the judgment contained errors that could possibly have been

attributable to the excessive delay. It must be noted, however, that the delay

here, of some four years, was unacceptable.

CONCURRING JUDGMENT OF THE HONOURABLE MR JUSTICE

JAMADAR, JCCJ:

[38] I fully support the opinions of Justice Barrow and President Saunders and wish

to add the following short comment on sections 18 and 84 of the Constitution of

Barbados as they relate to delay in the delivery of judgments.

[39] Section 18 falls within Chapter III of the Constitution which deals with the

protection of fundamental rights and freedoms. Section 18 itself secures the

protection of the law and details the many ways in which this is to be achieved.

And, section 18 (1) addresses the duty and responsibility, the obligation, of the

State to ensure that cases are determined fairly and ‘within a reasonable time’.

The Judiciary, as the third arm of the State bears primary accountability for

discharging this requirement. Placed as it is in Chapter III and given the

supremacy clause in section 1 of the Constitution, laws, and State actions

inconsistent with the imperatives of section 18 (1) are deemed to be

presumptively void; such is the import of the requirement.

[40] Thus, even as section 84 (2) of the Constitution is permissive and facilitative of a

retired judge or one who has resigned before retirement age being able, among

other things, to subsequently deliver a judgment, since this section falls within

Chapter VII of the Constitution (The Judicature), it is subject to the Chapter III

rights and freedoms, and resulting duties and responsibilities, and in particular to

the protection of the law standards of fairness and timeliness. Section 84 (2), read

36 [2008] 73 WIR 56 at [22].

/s/ A Saunders

/s/ J Wit /s/ M Rajnauth-Lee

/s/ D Barrow /s/ P Jamadar

in the context of the entire Constitution, is subject to sections 1 and 18 of the

Constitution.

[41] I agree with President Saunders that in this case: ‘There is no evidence that the

judgment contained errors that could possibly have been attributable to the

excessive delay.’ Yet based on an outer time standard of reasonableness for the

delivery of judgments of six months, this delay of four years is unacceptable. In

cases such as this, the minimum that should be done is to offer an explanation to

the parties for the delay and, as was done in this case, an appropriate apology, not

that these could exempt the default, but maybe they could rescue in some small

measure public trust and confidence in the administration of justice in Barbados.

It is my sincerest hope that this case is an exception and not indicative of a pattern

of delay in the delivery of judgments in Barbados. Section 18 suggests that any

such patterns may be deemed inconsistent with proclaimed core values of

Barbadian constitutionalism.

Orders of the Court

[42] The Court makes the following Orders -

1 The appeal is dismissed.

2 Costs to the respondents to be agreed or assessed by the Registrar.

_____________________________

The Hon Mr Justice A Saunders

_______________________________ _______________________________

The Hon Mr Justice J Wit The Hon Mme Justice Rajnauth-Lee

________________________________ _______________________________

The Hon Mr Justice D Barrow The Hon Mr Justice P Jamadar