The Barbados Bar Association says Government’s Debt Settlement (Arrears) Act, which provides for the issuance of bonds in personal injury matters, is leading to further delays in the justice system.
Government created the facility in 2021 for the issuance of Series J bonds to allow it to settle its obligations and liabilities to people whose lands were acquired under the Land Acquisition Act, those in respect of causes or legal claims instituted against the Crown, and for Barbados-denominated arrears incurred or assumed by the Crown, all before September 30, 2018.
Following concerns brought to the Sunday Sun by both attorneys and their clients, Bar president Kaye Williams confirmed that they, too, had “received numerous complaints from both litigants and attorneys on this issue”.
She said the Act “raises serious constitutional concerns”.
“To explain the background to this, the Debt Settlement (Arrears) Act, 2021-32, provides for the issuance of bonds to settle certain obligations of the Government. Section 3 . . . states that the purpose of the Act is to facilitate the creation and issuance of J bonds for the settlement of Government obligations, including those arising from legal claims instituted against the Government.
“What that means is, when a claimant receives an award or settlement in a matter against the State, there is no lump sum payment. The payment to the claimant will be allocated over 42 months from issuance or, in other words, repayment occurs in 42 equal instalments monthly over three and a half years.”
Williams said there was no provision for interest or compensation for delay in payment.
“For the average claimant who has waited years for their court matter to be completed, they do not have the benefit of receiving the award in a lump sum. For many, this has resulted in further hardship. I say further because in many cases where personal injury has occurred, they haven’t been able to work or to work at the same levels as before. As a result, they have suffered loss of income, arrears on loans and mortgages
or simply cannot sustain themselves or their families.”
The Bar president pointed out there was also a provision which could result in further delays.
“What a lot of claimants do not know is that there is also a Natural Disaster Clause, so yes, repayments may be suspended or delayed in the event of a declared natural disaster.”
She stated: “By replacing immediate monetary compensation with bonds, the [Bar Association] is of the view that the Act not only delays justice, but diminishes the effectiveness of courtawarded remedies. It fails to provide ‘full and fair redress’ to claimants while raising serious constitutional and legal concerns about the enforcement of judicial decisions.”
Quoting from the European Court of Human Rights, Williams said: “This Act raises serious constitutional concerns, particularly in cases where bonds are being used as a substitute for immediate monetary compensation. Authorities from the European Court of Human Rights have held that the statutory suspension of the enforcement of an entire category of final judgments – solely due to the magnitude of public debt – is unconstitutional. In such a circumstance, a litigant/claimant may argue that the Act constitutes a prima facie breach of Section 16 of the Constitution of Barbados.”
The Bar Association listed a number of “key concerns” pertaining to the legislation such as: delayed access to funds; inability to pay legal fees; erosion of award value; and violation of the separation of powers.
When contacted, Solicitor General Anika Jackson said the Debt Settlement (Arrears) Act facilitates the payment of dated obligations by bonds, while the Government seeks to manage its cash flow. (MB)
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