Appeal process impeded by wait for written ruling in COVID-19 case

More than six months after Madame Justice Jacqueline Cornelius tossed out four lawsuits brought against the Government and its COVID-19 directives, a written decision has not yet been provided to the claimants.

As a result, the claimants and their attorneys, Queen’s Counsel Hal Gollop and Neil Marshall, suggest their clients’ fundamental rights are being impacted since they are unable to file the Record of Appeal – which includes everything presented at trial as well as a transcript – to challenge the decision.

On October 8 last year, in the matter regarding the lawsuits brought by trade union leader Caswell Franklyn, shopkeeper Adrian Kellman of Kermit’s Bar, and Benson Straker of Benson’s Minimart Ltd. that challenged the constitutionality of the COVID-19 protocols, Justice Cornelius issued a truncated oral decision as she ruled that the directives were a proportionate response to the pandemic and not a breach of any fundamental rights.

At that time, she promised to have her written decision delivered within 30 days.

The lawyers filed an appeal on October 25. However, since then, according to Marshall, in spite of writing the Registrar of the Supreme Court and the Chief Justice on at least two occasions to get, at the very minimum, the transcript or the recording of the oral decision, they have received neither to date.

On February 8, 2022, all parties were alerted via email correspondence from Justice Cornelius’ clerk Deniece Drayton that the written decision would be ready on March 7.

“The PDF version will also be emailed to you by this date. Madam Justice apologises for the delay in the completion of the written decision. She was ill for six weeks and was therefore unable to provide the transcript of the oral decision as promised,” Drayton’s letter stated.

On March 7, another email was circulated by Drayton which informed that the written decision was “in the process of being edited and will be available for collection before the end of this week”.

“And, we’ve heard nothing of it since and this is well near two months since those additional messages were sent. It is more than half a year since the matter was filed and adjudicated. My clients are very anxious and want to know what is going on. All the while, Government continues to pass new directives penalising Barbadians. In very recent times the current administration made it as part of a policy, in terms of enhancing the justice system and the improvements, that judgements be delivered within a particular period of time after they’ve been heard, so why the delay?” Marshall questioned.

The attorney said the delay means the claimants’ right to appeal is further impeded since the set date of March 29 to appear before the Court of Appeal was vacated and they were notified they would be informed of a new date at a later time.

“So, no one knows, to date, what are the grounds or basis upon which the judge made her decision. We can’t appeal on a broad, vague ground, ‘the judge erred in law, the judge failed to whatever’. What you want in an appeal is to set out your very specifics . . . ,” Marshall said.

“For example, it isn’t good enough to simply say ‘the judge failed to take into consideration the argument’; you have to be able to identify where in arriving at her decision or her analysis that her analysis failed to give this thing or that thing consideration, where she applied a wrong principle, where her analysis was flawed – all of those things.

“For example, a policeman who in our view has no jurisdiction to close Benson’s minimart, when she says that he has the jurisdiction to do it, she has to qualify that; you can’t just say so. And if you say so, in the face of all these authorities presented to you, what is your own interpretation of these authorities and where is your own authority that negates those authorities provided by counsel?” the attorney added.

Franklyn, Kellman, and Straker had alleged, in their court action, that Government had been enforcing directives that were not approved by Parliament; while Benson’s Minimart Ltd., owned by Straker, brought a case against the Attorney General and the Commissioner of Police.

Marshall said that while everybody’s matters were of importance, this specific case is of national significance and especially important because the public at large stands to be affected by it. He believed, therefore, it ought to get the urgent attention it deserves.

“This is just not about Benson Straker, his minimart, Caswell Franklyn, or Adrian Kellman anymore,” the lawyer said. “When you bring a public law action like this and a constitutional matter, you are really speaking about every man and woman in Barbados . . . . I must say that this must take certain precedence over a lot of other things. It is one of the most serious cases in recent times, maybe second only to the one in the Senate which is arguing basically the same thing we are arguing: That any laws made by the Parliament of Barbados are invalid because the Parliament is not properly constituted. And we are saying on the other hand, that you have not taken these purported laws to Parliament to get the sanction of Parliament and they are therefore invalid.
(KC)