Attorney General Dale Marshall says he will he will be seeking Cabinet’s consent to bring legislation which would allow the courts to make orders for interim payments in personal injury matters.
Back in January the Attorney General’s office won an appeal against a decision made by a judge, for a claimant who was shot multiple times by the police 19 years ago, to receive an interim payment of $100 000.
The order was made because the AG’s office had not responded to attempts to settle the matter.
The Court of Appeal ruled that there was no statutory jurisdiction for the High Court to order interim payments in personal injury and other similar matters.
“I have noted the decision of the Court of Appeal. In fact, it was the state that appealed.
It was important to settle the issue, since we have had competing decisions in the High Court, most in support of the power to make interim payments and a well-reasoned decision going in the other direction,” Marshall said.
“There is a good rationale for making interim payments on account of damages, in appropriate cases.
These payments serve the admirable purpose of relieving the hardship that a person may suffer while awaiting a final decision of the court and in fact, the state has quite routinely made such payments to litigants over the years.”
Legal foundation
Marshall said his intention was “to seek Cabinet’s consent to amend the Supreme Court of Judicature Act to provide a legal foundation which would allow that which the Civil Procedure Rules already contemplates.”
“There is a procedure which is followed in making amendments to legislation, starting with the preparation of a policy position, which must first be agreed to by Cabinet, before drafting even starts. We then have to follow the Parliamentary process but if Cabinet supports making such an amendment, it should not take more than a few months to resolve.”
However, the Barbados Bar Association (BBA) has expressed concern about the implications of the decision as it called on Government “to take immediate steps to enact legislative reform.”
“This is another blow to claimants who are encountering delays with insurance companies as well as delays in obtaining medical reports needed to process their claims.
Obtaining medical reports is an expensive undertaking and that notwithstanding, claimants are being told that they must wait 18 months to two years for the specialist to produce a medical report,” the BBA said.
It added: “The decision highlights a critical deficiency in the Supreme Court of Judicature Act, Cap. 117A and the Supreme Court (Civil Procedure) Rules, 2008, which currently do not provide the judiciary with the express statutory authority to grant interim payments.
This limitation places claimants, often victims of serious personal injury, in a precarious position where they may be deprived of much needed financial
relief while awaiting the final determination of their cases.”
The BBA urged “Government, through the Attorney General and Parliament, to act expeditiously in remedying this gap in our legal system”.
It recommended the introduction of statutory provisions similar to those found in other Commonwealth jurisdictions, expressly granting the judiciary the power to order interim payments where liability is not in dispute or where justice demands.”
Assessment of damages
Meanwhile, attorney Verla De Peiza, who represented the claimant, Omar Durant, expressed disappointment in how the Attorney General’s office dealt with the matter pointing out that when it came to assessment of damages “the Attorney General’s Chambers was not ready”.
“We didn’t appeal, we didn’t apply for any interim payment. It was a court’s decision, but the Court of Appeal’s position was that it was very distasteful of the Attorney General’s Chambers to be making such an application when they are the very one who can cure it and put the legislation in place. But what it means is, and this is the practicality of it, that an insurance company can say, ‘I’m not paying for that medical report because I don’t have to’. You can’t force them to make interim payments anymore. That means that everybody who gets into an accident, forget the insurance company, they are on their own.
They have to finance it themselves, whether it be that they need to go to the doctor every month for a checkup, or if it is that they need to be flown out by air ambulance. There is nothing in law that can compel an insurance company to foot the bill, even if they are liable . . .”
However, a senior counsel suggested that a custom was developed in Barbados since May 2011 in several cases, including Hoyte v Electric Sales and Services Ltd, May 28, 2011, that the High Court judges and the Court of Appeal judges have assumed an inherent jurisdiction to properly adjudicate all interim payment applications.
Liabilities
“Maybe the inherent jurisdiction is contained in s.38 of the Supreme Court of Judicature Act Cap 117A of the Laws of Barbados which states as follows: “38. (1) The High Court and the Court of Appeal respectively shall give the same effect as heretofore: (b) to all legal claims and demands and all estates, titles, rights, duties, obligations and liabilities existing by common law or by any custom, or created by any statute and both Courts shall ensure that, as far as possible and subject to any enactment, including subsection (2), to the contrary, all matters in dispute in a cause or matter before those Courts can be completely and finally determined without further proceedings in respect thereof,” he said. (MB)
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