Ernest Smith & Company v Hugh Thompson

• Jurisdiction: Jamaica
• Judge: Wolfe-Reece, J.,Yvonne Brown, J,Evan Brown J.,Evan Brown, J
• Judgment Date: 29 May 2020
• Date: 29 May 2020
• Docket Number: CLAIM NO. 2018HCV03062
• Court: Supreme Court (Jamaica)

[2020] JMFC Full 7

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Coram:

THE HONOURABLE Mr. Justice Evan Brown

THE HONOURABLE Miss Justice Yvonne Brown

THE HONOURABLE Mrs. Justice Simonewolfe-Reece

CLAIM NO. 2018HCV03062

CLAIM NO. 2018HCV04791

In the Matter of Claim No. 2000HCV00289

and

In the Matter of Sections 16(2), 19 and 100 (1) of the Constitution of Jamaica

Between

Ernest Smith & Co

(A Firm)

1 ^st Claimant

and

Ernest Smith

2 ^nd Claimant

and

Nesta-Claire Smith

3 ^rd Claimant

and

Marsha Smith

4 ^th Claimant

Consolidated with

In the Matter of Sections 16(2), 19, and 100(1) of the Constitution

Between

Hugh Thompson

Claimant

and

The Attorney General of Jamaica

Defendant

Mrs. Georgia Gibson-Henlin QC and Ms. Nicola Richards instructed by Henlin Gibson Henlin for the Claimants in Claim No. 2018 HCV 03062.

Mr. Bert Samuels and Ms. Ashley Zimmenis instructed by Knight, Junor & Samuels for the Claimant in Claim No. 2018 HCV 03062.

Mrs. Susan Reid-Jones and Ms. Deidre Pinnock instructed by the Director of State Proceedings for the Defendant.

Constitutional law — Right to a fair hearing within a reasonable time-Delay/impossibility of a judgment being delivered — Reasonable time guarantee-Remedies for breach of the section 16(2) right — Damages — measure of damages-Whether summary assessment of the nominate torts would be an appropriate remedy — Costs — Costs thrown away — section 16(2) the charter of fundamental rights and freedom

IN THE FULL COURT

Evan Brown, J

1 I have had the benefit of reading the drafts of the judgments of my learned sisters, I agree with their conclusions which they seem to have arrived at by slightly different routes. In that regard, I am constrained to say I prefer the reasoning of Wolfe Reece, J. I, however, wish to say a few words on the question of delay. This I will do without the burden of a summary of the background to the claims as this is fully set out in the judgments of my learned sisters. I will use the collective, ‘the Smiths’, to refer to the claimants in claim no. 2018 HCV 03062.

2 The Constitution of Jamaica, particularly the Charter of Fundamental Rights and Freedoms, guarantees to all persons in Jamaica certain rights and freedoms. These are subject only to such limitations as are placed upon them by the Charter itself. So that, section 13 (2) of the Charter is in the following terms:

“Subject to sections 18 and 49, and to subjections (9) and (12) of this section, and save only as may be demonstrably justified in a free and democratic society –

• (a) this Chapter guarantees the rights and freedoms set out in subsections (3) and (6) of this section and in sections 14, 15, 16 and 17; and

• (b) Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges, or infringes those rights”.

3 Section 16 (2) of the Charter is a near cousin of the previous section 20 (1) of the old Bill of Rights section. That is to say, as was said of section 20(1) in Bell v The Director of Public Prosecutions [1985] 1 AC 937 ( Bell v DPP), section 16 (2) is a composite of three discrete rights: entitlement to a fair hearing; fair hearing within a reasonable time; and by an independent and impartial court or authority established by law. I quote section 16 (2):

“ 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”.

So understood, I agree with the submission of learned counsel for the claimant Thompson, that section 16 (2) is a compendious statement of the fundamental right to due process. Indeed, the Charter declares this to be so in section 13 (3) (r). The subsection specifically references the right to due process as provided in section 16.

4 This encapsulation of the fundamental right to due process is itself an invocation of that cherished concept which is the bedrock of a free and democratic society, the rule of law. Therefore, even those who are charged with the task of interpreting and declaring what is the law, by virtue of the doctrine of the separation of powers, are themselves not above the law. The judiciary, as an organ of the State, being the third branch of government, is obliged to take no “action which abrogates, abridges or infringes” Charter rights. The inviolability of the Charter rights therefore attaches as much to the judiciary as it does to any other organ of the State.

5 With that said, I will now consider the claimants' allegation that their right to a fair hearing within a reasonable has been breached, or engaged, in the language of learned Queen's Counsel, Mrs Gibson Henlin. To be clear, I am now considering the claimants' guarantee of a hearing within a reasonable time. I observe that although the defendant conceded that the delay in delivering the judgment was unreasonable in the circumstances, the defendant stopped short of explicitly saying the unreasonable delay amounted to breach of the claimants' constitutional right under section 16 (2).

6 The defendant went further in its written submission to name this as the first issue for resolution by the court. In fairness to the defendant, notwithstanding its identification of the hearing within a reasonable time as the first issue, no argument was deployed in opposition to the claimants' submissions. The defendant confined its submissions to the appropriate remedy, in the event that the court finds that the claimants' right to fair hearing within a reasonable time has been breached. I will address the question of the applicable remedy below.

7 As had been pointed out by learned counsel for the both the Smiths and Mr. Thompson, there is a dearth of authority under section 16 (2). However, its sister subsection, 16 (1), which deals with due process in the criminal arena, has seen much litigation. I will therefore draw guidance from the cases decided under section 16 (1) as both subsections are in similar terms, save for the reference to “any person charged with a criminal offence” under section 16 (1) and “the determination of a person's civil rights and obligations” under section 16 (2).

8 While section 16(2) makes no mention of the delivery of judgment, it is settled law that a “hearing” includes the delivery of judgment: Bond v Dunster Properties Ltd and others [2011] EWCA Civ 455 ( Bond). Therefore, a component of the right to hearing within a reasonable time is the right to a delivery of the resultant judgment within a reasonable time. According to Arden LJ, at paragraph [3] in Bond, “[t]he right is not a new one or one which is alien to the common law. Clause 40 of Magna Carta provides: “To no one will we … delay … justice”. I therefore find myself in agreement with the submission of learned counsel for Thompson that the underpinnings of this right are best articulated in the legal aphorism, justice delayed is justice denied.

9 The observation of Arden LJ in Bond concerning the absence of any statutory rule laying down time for the delivery of judgments in the United Kingdom, is equally true of this jurisdiction. The pivotal question therefore is, what is the time standard beyond which it may be said that the reasonable time guarantee under section 16 (2) has been breached?

10 The seminal authority on the question of unreasonable delay is Bell v DPP, supra. The question is to be approached against the background that the administration of justice takes places within the peculiar socioeconomic conditions of this jurisdiction. This was elegantly captured in the judgment of Lord Templeman, at page 953, who delivered the judgment of the Privy Council:

“Delays are inevitable. The solution is not necessarily to be found in an increase in the supply of legal services by the appointment of additional judges the creation of new courts and the qualification of additional lawyers. Expansion of legal services necessarily depend on the financial resources available for that purpose. Moreover an injudicious attempt to expand an existing system of courts, judges and practitioners, could lead to deterioration in the quality of the justice administered and to the conviction of the innocent and the acquittal of the guilty. The task of considering these problems falls on the legislature of Jamaica, mindful of the provisions of the Constitution and mindful of the service tendered from time to time by the judiciary, the prosecution service and the legal profession of Jamaica. The task of deciding whether and periods of delay explicable by the burdens imposed on the courts by the weight of criminal causes sufficient to contravene the rights of a particular accused to a fair hearing within a reasonable time falls upon the courts of Jamaica and in particular upon the members of the Court of Appeal who have extensive knowledge and experience of conditions in Jamaica” .

11 The approach of their Lordships in Bell v DPP, at pages 951–952, to the question of unreasonable delay was to accept the methodology employed by the Supreme Court of the United States in Barker v Wingo (1972) 407 U.S. 514. This was a case which concerned the sixth amendment of the Constitution under which an accused was entitled to a speedy and public trial, by an impartial jury. Four factors were identified for assessment in the determination of whether that right had been breached: (1) the length of the delay; (2) the reasons given by the prosecution [the judge] to justify the delay; (3) the responsibility of the accused [parties] for asserting his [or their] rights; and (4) prejudice to the accused [the parties].

12 Powell J elaborated on each of the above criteria. In respect of the length of delay, he said

“Until there is some delay which is presumptively prejudicial, there is no necessity...