Cindy Robinson v The Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Nembhard J,Anderson, K. J,Laing J |
| Judgment Date | 22 January 2021 |
| Neutral Citation | [2021] JMFC Full 1 |
| Docket Number | CLAIM NO. SU 2019 CV 04326 |
| Year | 2021 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
THE HONOURABLE Mr Justice K. Anderson
THE HONOURABLE Mr Justice K. Laing
THE HONOURABLE Miss Justice A. Nembhard
CLAIM NO. SU 2019 CV 04326
In the Matter of the Constitution of Jamaica
And
In the Matter of an Application by Cindy Robinson alleging breaches of her Rights under Section 16(2) of the Charter of Fundamental Rights and Freedoms (Constitution Amendment) Act 2011
And
In the Matter of an Application for Constitutional redress under the said Charter
Mr Manley Nicholson instructed by Nicholson Phillips for the Claimant
Ms Tamara Dickens instructed by the Director of State Proceedings for the Defendant
Constitutional law — Breach of right to a fair trial within a reasonable time — Delay in judgment being delivered — Impossibility of judgment being lawfully delivered the Judge having retired_ — Whether a retrial ought to be ordered — Burden of proof as regards whether a retrial ought to be ordered — Remedies — Whether compensation ought to be awarded to the claimant as damages arising from the breach — Assessment of sum to be awarded — Whether award can include damages and costs in original claim — Charter of Fundamental Rights and Freedoms (Constitution Amendment) Act, 2011, section 16(2) — The appropriate costs order to be made in respect of this claim — Civil Procedure Rules, 2002, rule 64.6 (3) and 64.6 (4) (b) and (d)
The judgment in this claim was announced orally to the parties on January 22, 2021. This court had then promised that written reasons for judgment would have been provided at a later date. These reasons are now so provided.
The claim for constitutional redress in the instant matter concerns the constitutional right to a fair hearing within a reasonable time before an independent and impartial court or authority established by law.
The claimant through her attorneys — Nicholson Philips, instituted Claim No. 2008 HCV 00513 — Cindy Robinson v Dr. Alfred Atkinson, Morant Bay Health Centre and the Attorney General of Jamaica, (‘hereinafter referred to as the original claim’), in which she sought damages in medical negligence which allegedly arose from an incident, which took place on April 30, 2007. The claimant, alleges that, on that date, she attended at the Morant Bay Health Centre, in Morant Bay, in the parish of St. Thomas, where she underwent a dental procedure to have an “eye” tooth, on the right side of her mouth, extracted. During and following that procedure, the claimant contends that she experienced blurred vision, severe headaches, vomiting, permanent loss of vision and permanent disability. The claimant contends that, as a consequence, she was compelled to seek further medical attention in 2007. At the conclusion of that process, it was determined that there was no possibility of reversing her injuries.
The original claim was tried by the Honourable Mr. Justice Raymund King, during the period of June 28 to 30, 2010, at the end of which, judgment was reserved. King J retired from the position of Puisne Judge in 2013, without delivering the judgment of the court.
Since his retirement, the claimant had, through her attorneys — Nicholson Phillips, written to the office of Chief Justice on September 17, 2013, March 2, 2016 and April 11, 2018. Correspondence was also written by the said claimant's attorneys to the Attorney General's chambers, on April 18, 2011 and March 21, 2019. Those were geared towards obtaining a resolution of the original claim. Unfortunately, however, the same did not produce any fruitful result, towards the achievement of the desired objective.
By way of a fixed date claim form, filed on November 5, 2019, the claimant has sought the following redress, pursuant to section 19 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 and Part 56 of the Civil Procedure Rules, 2002:
'1. A Declaration that the Claimant's constitutional right to a fair hearing within a reasonable time by an independent and impartial court or authority established by law, as guaranteed by section 16(2) of the Charter, has been breached;
2. A Declaration that a fair hearing can no longer be guaranteed to the Claimant in her claim brought in the Supreme Court in Claim No. 2008 HCV 00513 Cindy Robinson v Dr Alfred Atkinson, Morant Bay Health Centre and the Attorney General of Jamaica;
3. Damages including that sought in Claim No. 2008 HCV 00513;
4. Special Damages as claimed in Claim No. 2008 HCV 00513;
5. Interest on Damages;
6. Costs in Claim No. 2008 HCV 00513;
7. Costs; and
8. Such further and other relief be given as this Honourable Court deems fit.’
In support of her fixed date claim form, the claimant has filed an affidavit in support in which she outlines, inter alia:
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a. The circumstances of her original claim;
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b. The steps which she has taken to have her claim resolved to the date of the filing of this claim; and
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c. Her emotional and psychological condition arising from her having to await judgment in her original claim.
The relevant portions of the claimant's affidavit evidence, will be examined further on, in these reasons. There was an affidavit filed by the defendant, in response to this claim. That was the affidavit of Louis Jean Hacker, Attorney-at-Law employed at the office of the Director of State Proceedings, which was filed on the 21 st day of January, 2020. At a case management hearing though, the defence counsel then informed the court that the defendant no longer intended to rely on that affidavit evidence. As such, there is no affidavit evidence being relied on by the defendant, in response to this claim. Both parties have filed skeleton submissions as regards this claim. This court has carefully considered the claimant's evidence and the respective parties' skeleton and oral submissions.
The following issues have arisen from the claim:
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i) Whether the claimant's constitutional right to a fair hearing within a reasonable time before an independent and impartial court or authority established by law, as guaranteed by section 16(2) of the Charter, has been breached and if so, what remedies, if any, ought to be ordered, arising from same.
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ii) Whether a retrial of the original claim, ought to be ordered.
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iii) Whether the claimant is entitled to recover compensation for any of the expenses incurred by her, with respect to the trial of her original claim.
The Constitution of Jamaica and, in particular, the Charter of Fundamental Rights and Freedoms, guarantees to all persons in Jamaica, certain rights and freedoms which are subject only to such limitations as are placed on said rights and freedoms by the Charter itself. See: Section 13(2) of the Charter of Fundamental Rights and Freedoms (Constitution Amendment) Act, 2011.
Section 16(2) the Constitution concerns the right to a fair trial in civil proceedings. It reads as follows:
‘In the determination of a person's civil rights and obligations or of any legal proceedings which may result in a decision adverse to his interests, he shall be entitled to a fair hearing within a reasonable time by an independent and impartial court or authority established by law.’
The claimant contends that the trial of the matter of her original claim which ended in June of 2010, without judgment having been delivered, amounts to a breach of her right to a fair trial within a reasonable time. That breach she has alleged, is concretized by the recent judgment of the Court of Appeal in Paul Chen-Young and others v Eagle Merchant Bank Jamaica Limited and Others (The Attorney General for Jamaica, interested party) [2018] JMCA App 7 where at paragraphs 69 and 70, it is stated that:
'69. If there is a common thread running through these cases, albeit each based on different constitutional and statutory regimes, it seems to me to be this: 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 (as, for instance, in section 106(2), or in provisions found in statute or rules, as in cases like Ritcey et al v The Queen and Orient Bank Limited v Fredrick Zaabwe and Mars Trading Limited), any ‘judicial’ act subsequently done by him or her will have been done without authority.
70. It accordingly seems to me that, as I have already suggested, the only possible basis upon which a judge of appeal can continue to perform as such after he or she has attained retirement age is by virtue of permission given for the purpose by the Governor-General under section 106(2) of the Constitution. In this case, as far as the court has been able to ascertain, none was either sought or obtained. It therefore follows that, the judges all having retired before delivering judgment in this appeal, the impugned judgment handed down on 1 December 2017 must be regarded as a nullity. And it follows further that the applicants have made good their contention for an order that the appeal should be set down for a rehearing at the earliest convenient time.’
Section 100 (1) of the Constitution prescribes that:
A Judge of the Supreme Court shall hold office until he attains the age of seventy years…”
The claimant contends that the fact that King J has retired, and has not delivered and cannot ever hereafter deliver a judgment in her original claim, amounts to a breach of her constitutional right to have her claim tried within a reasonable time.
The defendant has conceded that the claimant's right to a fair trial in...
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...Id.52. Long Wait for Justice, supra note 7.53. Id.; Robinson v. Attorney General of Ja. [2021] JMFC Full 1 [4]. 54. Robinson, [2021] JMFC Full 1 [5].55. Id. (noting that since the judge retired in 2013, the litigant wrote to the Chief Justice in 2013, 2016 and 2018 and to the Attorney Gener......