ARIBBEA The ISSN 0255 - 7118

BULLETIN OF THE CARIBBEAN ASSOCIATION OF LAW LIBRARIES

VOLUNE 3, NOS. 2 & 3

Editor: Leslie P. Fenty

Librarian, Norman Manley Law School

P.O. Box :?31, Kingston 7, Jamaica, W.I.

JULY/NOVEMBER,1986

NOW AVAILABLE .

at Leading Bookstores

UNDERSTANDING CRIME

an Introduction * WHO ARE THE CRIMINALS IN SOCIETY

* WHY DO PEOPLE COMMIT CRIMES

* THE EXTENT OF CRIMINALITY IN THE SOCIETY

* CRIMES IN BUSINESS ESTABLISHMENTS

* THE REASONS FOR POLICE BRUTALITY

* THE LOTTERY OF JUSTICE

* THE POLITICS OF CRIME

* THE CONSEQUENCES OF IMPRISONMENT

* THE DRUG TRADE - WHO ARE INVOLVED

* AVOIDING CRIMINAL ATTACKS

* CRIMINALITY IN THE CARIBBEAN

UNDERSTANDING CRIME

an Introduction

by DELROY CHUCK edited by DERRICK McKOY

Crime is fast becoming the number one social problem in every country. Know something about it by reading UNDERSTANDING

CRIME: A book written in SIMPLE, NON-LEGAL and NON-TECHNICAL LANGUAGE for everyone to understand ..

published by Caribbean Law Publishers Inc. Bridgetown, Barbados

Printed by University School of Printing University of the West Indies Mona, Jamaica.

ORDER FORM

Price: Bds$20.00 US$10.00

ISBN 976-8043-00-8

Please supply ................... copy/copies of UNDERSTANDING CRIME. I enclose a cheque payable to Caribbean Law Publishers

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[ I

The CARIBBEAN AW LIBRARIA

ISSN 0255 - 7118

BULLETIN OF THE CARIBBEAN ASSOCIATION OF LAW LIBRARIES

VOLUME 3, NOS. 2 & 3 JULY/NOVEMBER, 1986

Contents

Page West Indian Legal Material

by: C Denbow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 33

Law Reform by: Neale-Irving. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 37

Legal Writing and Publishing by: F. Phillips .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43

Association News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 49

Profile and Message of President 1986/87 ............................. 50

Negligence and Confiden tiality in Banking by: CD. Morrison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 51

Judgments of the Eastern Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 58

Duplicate Disposal Scheme. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 64

Caribbean Legal Miscellanea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 69

Case Note - Public Service Commission v Eric Douglas . . . . . . . . . . . . . . . . . . .. 71

The Caribbean Law Librarian is published by the Carib­bean Association of Law Libraries.

EDITOR

Mr. Leslie P. Fenty

EDITORIAL COMMITTEE

Mrs. Yvonne Lawrence

Miss Carol Ford Mr. C. Dennis Morrison

Mr. Ian Randle

Miss Jeanne Slowe (on leave)

© Caribbean Association of Law Libraries 1986

Published three times per year Subscription rates US$15.00 per annum Single issues US$6.00

All correspondence concerning the publication should be addressed to:-

The Editor Caribbean Law Librarian c/o Norman Manley Law School Mona Campus P.O. Box 231, Kingston 7, Jamaica, W.1.

North American readers should obtain subscription from

the sole North American agent:

Wm. W. Gaunt & Sons Inc., Law Book Dealers & Subscriptions Agents Gaunt Building 30 II Gulf Drive Holmes Beach, FL33510-2199 U.S.A.

'" - ._-----_.--_. _._' --~------.-------.-.--------------------~

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CARIBBEAN LAW LIBRARIAN JULY/NOV. 1986

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West Indian Legal Material - Availability -

Problems of the Researchers*

By Dr. Claude Denbow Barrister, and Tutor at the Hugh Wooding Law School, Trinidad and Tobago.

Ladies and gentlemen my understanding of what we are seeking to achieve this afternoon is that I will speak for some period of time not exceeding half an hour, and we will then have some discussions as to the areas which I have sought to focus upon.

The topic _. West Indian legal materials - availability problems of the researcher, pre-supposes that there are

problems for the researcher. I will certainly start off by saying that there are quite formidable problems for the researcher and one is speaking in the capacity, both as researcher for aC8demic purposes as well as researcher for professional purposes. The emphasis this afternoon will be on the researcher for professional purposes, because in that capacity the difficulties to which I will be alluding, will be clearly highlighted.

The starting point of allY discussion on West Indian legal materials - not going back into any ancien t history -­would be some brief reference to the goals which the present system of legal education is seeking to achieve. As I recall it, what the founding fathers, so to speak, of legal education wanted to achieve when they implemented that new system back into 1970, was to lead towards the development of what is called a West Indian Jurisprudence. What they were getting at was that they were looking for the creation of a body of law bas;:d on case law which would, although it had its originals in the English COlrlmon law, reflect, or be imbued with an indigenous flavour, the customs of people and be influenced by local situations and not be bound by what English Judges have declared over two to three hundred years. That seemed to me to be what was being contemplated by the label "West Indian Jurisprudence". I don't think anything more ambitious than that could have been contemplated because one is dealing with a system where the common law of England is the law of all the territories of the Caribbean.

Hence I take the term "West Indian Jurisprudence" to mean that limited concept of local decisions which reflects local conditions. However, to my mind, it is not close to fulfilment for a number of reasons. One doesn't get a jurisprudence developing in a territory unless one has gone through a system of declaring law and building pre­ceden t over anum ber of years, and we art' very young in this part of the world ill that exercise. More importantly, one c1l\~Sn't ["et a jcr;Spr\idellC(~ (!cv(~lopi!lg unless you get

*Paper delivered at the First Annual General Meeting of CARALL in July 1985, and reproduced from a tape.

your texts and the availability of your case law established. What one is talking about are essential pre-conditions be­fore you can even begin to say very seriously that there is a jurisprudence pertaining to a particular territory. We're concerned here with the Caribbean area. So the two es­sential pre-condition's that will serve as the basis for arriving

at the conclusion that there is a West Indian jurisprudence would be:

I) availability of reported decisions

2) easy accessibility of these decided cases - and easy accessibility will mean in practice that they have found a place in the footnotes of textbooks.

These are the two areas which are at present militating against the reality of a West Indian jurisprudence. To my mind it doesn't exist, quite frankly, and all one can do is to strive towards its fulfilment. So what I am proposing to do in my brief talk this afternoon is to look at some of the reasons why the so-called West Indian jurisprudence hasn't come to pass as yet and what could possibly be done to put it on track to lay the foundation or to ac­celerate the process towards realization. I think it's very important that this is articulated because the law library has a pivotal role to play in any thrust towards developing a jurisprudence relevant to the Caribbean Area.

That gives the background to what I want to talk about and the first area I want to focus upon is the ques­tion of the availability - the problem of accessibility of local decisions. If you look at it on a number of levels -and I'm speaking now as a researcher for professional pur­poses - the first problem that one faces in terms of being able to identify whether there has been a West Indian case decided on a particular point is the fact that no textbooks which will make references to such cases, exist. So the immediate thought that goes through the practitioner's mind when he wants to research a particular point is to go to a textbook, read the passages and see cases in the foot­notes. He then looks up those cases to see whether they help him. If there are no West Indian textbooks, or if there are very few, the cases which have been decided do not get exposure so they are never referred to and here I'm talking about cases which are reported in the West Indian Reports. It is common·place that because we do not have any signi­ficant number of texts which deal with areas of law, part i-

CAFzrBBLAN LAW LlBRARJ,\N :-'33

cularly pertaining to the Caribbean, that the cases which have been decided in the Caribbean and which are actually quoted in the West Indian Reports do not get exposure, they are not referred to, and people who do not have a lot of time to look at the cases do not know of their exist­ence and do not find them when thev do research. This is the first stumbling block or initial hctor which militates against the development of any form of localized learning in the case law, because the whole system of precedent and development of law depends upon one being able to cite decisions, being able to bring them to the attention of the court and the court restating the principles and developing the law; but this process hasn't even started. It is difficult to initiate it because one does not have any­thing in place which guarantees the exposure of the decided cases.

Perhaps I can digress a moment to make reference to l

one example of what I'm talking about. Case law which has been decided and reported in the West Indian Reports does not feature in a decision before a Caribbean Court although this case is really on point, Just back in the early 70's there was a case which went to the Trinidad Court of Appeal involving the question of whether a person driving a private-hire motor car without having the proper insurance cover was guilty of an offence when he was caught by a policeman on one occasion. There were three West Indian cases which had been eited back in the 60's, very much on point covering that situation. None of them were cited, although they were all reported in the West Indian Reports, and the Court held contrary to those cases, followed the English decisions which were not on poin t because they dealt with a particular English statute. The result is that there is in existence a Court of Appeal de­cision in one territory at variance with decisions in other territories when all the countries have almost the same and identical statutes. What is more there was no reference to the earlier cases in the later decision.

The foregoing example highlights and ulider-scores the r-lint I was making -- that you can have cases which although they are reported in the West Indian Reports -­are never cited because the practitioner involved in the matter has not found a decision. Instead, because he has used a textbook which will refer to an English case and if he has found the English cases, he has not probed the West Indian Reports because that is a laborious process. This is an example of a situation which is not unique be­cause practitioners as a rule do not look up West Indian

. cases. I am talking specifically now about the English­trained practitioner. He will not start off his research by referring to West Indian cases because he doesn't have easy access to them. You may find that the new products of the present system of legal education - because they are taught in the West Indian cases - much more frequently will have r,ecourse to the West Indian Reports as a form of research or the first reference point, but basically the English-trained practitioner is nnt going to research in that area. The result of th~! is that decisions, although ti,i:y find (hi; way into

the West Indian Reports, have lost the opportunity of being restated and developed and the law carried to any higher level. That is the first and, to my mind, one of the funda­mental problems. You must recognize that the road to­wards developing any form of localized or West Indian jurisprudence is very difficult, because one docs not have the basic textbooks which will give the necessary exposure and access to these cases.

There is another reason, too. The absence of the text­books also means that the cases are not discussed and put in their proper perspective and basically practitioners like to say that the case upon which they relied is referred to in this text and is stated as authority in this particular point and therefore it should be followed by a judge. If you don't have that type of treatment of a particular decision it

doesn't serve very much purpose - assuming that you know about it in the first place. When one looks at the reporting system itself, there is a second area of considerable diff­iculty. This is because the West Indian reporting system as I think you all very well know, is not in the most satis­factory state. You will first of all find that the reports are quite out-of-date. Decisions made in 1979 may just be finding their way into the West Indian Reports 1985. That may be overstating it a bit but I think you will find ex­amples of that. So, long delay between the delivery of a judgment and its being carried in those reports is the first stumbling block in that area. Secondly one is not very clear what criteria are used, hence one finds some very trifling decisions reported and very serious decisions never find their way into the reports. They just remain as "No.llOO of 1979" and you might pick it up by luck or chance.

So when you take those factors together -- the delayed publication, and the confusing criteria as to what decisions make the Reports - you will find that the whole impact of West Indian decisions is nullified in this part of the world because people are not going to spend an inordinate length of time looking for a decision. You will find that where one is referring to a researcher with academic pursuits, time is somewhat less precious and there is a greater likelihood that he/she may be able to unearth these decisions, but in the pmfessional field, the reality of it is that you are not going to find the West Indian decisions being pursued.

This brings me to another level of the problem - that is the problem of unearthing and fmding relevant decisions. When you look at the localized situation of each territory, I think everyone is aware that you have had a long history of law reporting in this area of the world, beginning with Jamaica in 1774 - over 200 years. But there are certain characteristics which are quite evident in the whole system and that is that the long history is not continuous, it has been very intermittent. There have been long periods of non-activity so that I do not think there is any territory in this part of the world where law reporting is up to date. In fact, one would not be wrong to say that it's hopelessly out of date in every territory, with the result that you really are in a lottery situation w]len you arc seeking to

argue a point where you mayor may not have a local deci­sion. One doesn't really know what exists and the problem is compounded by the absence of any cumulative indices with regard to local law reports. Even if one were minded to research a point in relation to a particular country, one would have to basically refer to the index of every law report and go through the subject index and hope to find something of that nature. I am particularly familiar with the problem because that is what struck me as one of the greater disadvantages of seeking to practice in the Carib­bean when I initially started back in 1973. I recall that in

Velma Newton's report on Legal Literature and publishing ill the Caribbean she mentioned that the most compre­hensive digest of cases in any territory, was found in Guyana in the firm of Cameron & Shepherd and it wouldn't be immodest if I said that I recall driving 10 miles to photo­copy those cases in 1973 because my biggest problem was "where is the law?". There W3S no way you could find it. What had been done was the photocopying of all the in­dices to the reports which were pldced by su bject headings in one folder. Many pr3ctitioners have subsequently made use of th3t facility in the offices of Cameron & Shepherd and although as a starting point that is not very much, I am not aware that there is any cumulative index of cases referrable to any other territory in existence. So, another major difficulty is created in the way of a person who wants to research in relation to decided cases of the Carib­bean. What has happened is that the majority of practition· ers - and I am talking particularly now of English-trained practitioners as opposed to the West Indian product- have basically got into the habit of not looking at local decisions, not being aware or even thinking that they should look for local decisions because it is so time-consuming a process. It is designed to break the heart of the most ardent researcher because you are going to be thumbing through a number of

volumes for an extensive length of time with no gaur an tee that you will find anything unless you talk with an older person who may have been arolllld and who can refer you to the appropriate cases.

Research in the Caribbean is largely an oral tradition _. one hears that a case was decided on a point and looks it up. You don't have any guarantee that your efforts or your time can be minimized by being able to focus on a parti­cular book -- you may, by the way, hear that somebody has done a particular case. So when one takes all of these factors into account even the local law reporting system as it does exist, is woefully inadequate and it makes it less likely that the decisions even when they are reported years after they have been delivered, are going to find their way into the professional's brief to be cited before a judge and to be pronounced upon and to be developed. What you will find in practice is that the English cases predominate and if there's nothing in England one looks at Australian or Canadian cases, then West Indian cases if you're unable to find anything else.

This is how it bappens in reality bccz~usc all of these coull' .. ic~ have t~XlS ;1.:"ld t;luSC 1:-l:t8 v:i1: ~.:fer t(} CllSCS iIi

the footnotes and one can find them in a particular library. I personally - and a lot of my colleagues - don't think about starting with the digest or indices to the West Indian Reports as first reference. Assuming that you think there may be something, you start with an English text, then Au:;tralian, then come back to the Caribbean. I think that habit has become so ingrained that one will find in practice that cases are cited or submissions are made in the courts on a regular basis without appreciation of the local con­dition. It's different, it's divergent from what pertains in the U.K. from which the cases come. There are a numb~r of examples which have occurred over the years where practitioners have made submissions which are inapplicable because they emanate from statutes which do not apply here. They haven't looked at the local position because the habit has persisted in their whole operation that they don't consider that as part of the research process.

You have bizarre examples occurring where the fact that the system of law is different is not even appreciated. There is one which always sticks in my mind. The system of land law in Guyana is different. It's Roman-Dutch and not English. There have been a number of decisions in 2 or 3 books- that of the late E.M. Duke and Dr. Ramsahoye who have written on land Jaw in Guyana, which is Roman­Dutch. But I recall a practitioner citing English cases on that area and not even being familiar with the fact that he was dealing with a totally different system. That is prob­

ably the most extreme or bizarre example one can find on the lack of knowledge of Jocal law. There was no real excuse for that because those books were in existence and he should have been seized of their existence.

I have been talking about reported cases but I think that one must recognize that there has been a lot of effort made in terms of local law libraries that I know of, where the indexing process has started. A number of unreported decisions have been put on card indices and are available, particularly in the Supreme Court and the Law School Libraries. That forms the foundation, but there again the reality of the problem is that people do not have the neces­sary time. Unless they are hard-pressed and must find a local decision on a point, they haven't the time to thumb through a card index. You will find that people will have recourse to those indices, most likely if you're dealing with a running-down action where a local award of damages is important, or you're dealing with a constitutional motion where there are a number of decisions which have been made particularly referrable to interpreting the Constitu­tion in local situations. But outside of some of those areas that I cited, one will not find, in practice, a lot of enthu­siasm about going through a card index looking for a sum­mary of a case, because it's a question of time and con­venience. Although that facility is there and it is highly commendable, I think one has to look beyond this if one is to be moving along the road towards a West Indian jurisprudence.

l-:~lViJlg criticized tIle system or having shown up all

the inadequacies as I regard them, the question is, what does one do or what can be done to put the whole process on track? Having admitted that we do not have in this part of the world, any localized system of law, decisions which reflected any local conditions, the question is, how docs one put i:l place lllechani~ms which will facilitate the coming to pass of such a system? Obviously, what comes to mind immediately is the computer. The gap is so wide and the situation is so desparate, for want of a better word, that one needs to take radical measures to bring decisions -the case law which does exist - up to the level where the opportunity to build on it, is provided. It seems to me that the computer provides one particular avenue which could put in place, or make available those decisions to practi­tioners or to researchers who are in the business for acade­mic pursuits.

Now, there is obviously a cost problem and one doesn't know how the whole thing works out but it provides the most rapid prospect for bringing to fruition what I have been talking about. Quite apart from the compu,ter there is also the possibility that the law reporting function in this part of the world may be carried to a higher level by the use of law students who have completed the LL.B and

are in the law two years of their legal education. They can operate under supervision by practitioners. I don't think

thal Standing Committees from the profession for law reporting purposes are likely to achieve the speed which is necessary in the situation. One is likely to find that the backlog situation, the delay of reporting will be entrenched because what one is really seeking to do is to have people who are practising and who do not have the time to devote to that type of function, being in charge of actually doing the work, and it really is unfortunate if one is going te regard the existence of those Committees as the answer to the problem. The problem can only be seriously address­ed if there is a lot of speed and expeditions conduct in treating it. One is dealing with the use of some people who ought to be enthusiastic and who can devote a lot of time to the function of bringing cases up to the reporting stage.

That, by itself will not put one in a position where the exclusive goal of West Indian jurisprudence will be brought any closer. Having secured the reporting function, having brought it to the stage where reports are more frequent and up to date, one is still looking at another stage - that being the recurrent production of articles which utilize those decisions which have been brought to the fore, and having reached the stage of articles one goes beyond that to the stage of textbooks. It's a continuous process - the article stage to textbook stage and it is at that point that we come back to the original theme of what I have been talking about. Once you reach the textbook stage you then create the possibility of decisions which have emanated from the Caribbean Courts, being developed, being restated and

/qeing carried into a state of reformation where one can start thinking in terms of saying that there is a West Indian Jmisprudence. That is a very lengthy process. We haven't startc.j to scratc\' the surfacf"; Lout \vLcn tnBt st:lge i~· reac1-l·

~~'~"'-".'~."~'" I, 'T ,7).):. ,-,-f 1\'

ed, legislation can be passed to take account of inad­equacies in the law - the law can be reformed on an in­formed basis. Instead of taking lock, stock and barrell from so many other statutes, an indigenous way of doing things can be created and this is probably the final stage towards accomplishing a West Indian jurisprUdence. It can only be done by going through these processes. It has to be built on the existence of an up-to-date system of law reporting, out of which will grow continuous review in terms of articles of cases and out of that, textbooks and reform of legislation_ Without that process, we are still in a stage of myth and not reality.

What I have attempted to sketch is an overview of the fundamental problems of the researcher and the reasons why those problems are compounded, the reasons why those problems are very fundamental and to suggest what steps or measures may be taken to correct the situation, put on track the whole process by which one can develop a system of law which is imbued with an indigenous flavour referrable to this part of the world.

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LAW REFORM By Rosemarie Neale-Irving

Senior Legal Officer, Legal Reform Dept., Ministry of Justice, Jamaica, and Secretary to the law Reform Committee

"Law Reform is like making love to an el­ephant. The task is virtually impossible; and even if you succeed, nothing happens for two years':+

Introduction

This article will attempt to explain what law reform is any why it is considered necessary in most jurisdictions; what law reform seeks to accomplish and the agencies which are usually commissioned to bring it about; as well as the methods by which law reform is brought about. In addressing these issues, I will draw upon our experiences in Jamaica and elsewhere, and it is hoped that in so doing the reader will better appreciate the importance of law reform particularly in a developing country such as Jamaica.

What is law reform and why is it necessary?

Basic to an understanding of law reform is the principle that the law governs every aspect of our daily lives, includ­ing death. The law also governs our relationship with each other. These relationships undergo continuous and com­plex changes as society develops so that as new values evolve, it becomes necessary for the law to reflect these new changes. Law reform is the process by which, primarily throu~h legislation, these changes are manifested. It is necessary therefore, for our Statute Books to reflect these changes on a continuous basis, both as to the substantive and procedural law.

Law Reform can best be described by looking at the terms of reference of the Law Reform Committee. This is the oldest law reform body in Jamaica which was establi­shed by Cabinet in 1964*:

"To consider, having regard to the common law, judi­cial decisions and Statute Law, what changes are desir­able in legal doctrines, legal principles and legal process in the light of modern conditions, and particularly in the light of Jamaica's status as an Independent coun­try, and to make recommendations to Government in connection therewith".

The process by which law reform takes placc in J amaic3 is b:1 recommendations beinf!, submitted to government on

are ricsjgn-

*The views expressed in this paper are personal and not that of the Law Reform Committee.

ed to achieve, through the adoption of new or more effect­ive methods of administration, social justice and desirable social and economic goals. When these proposals are sub­mitted to government they are evaluated to determine whether they should, in fact, be enacted into law. Recom­mendations are made either by the Law Reform Committee or other Jamaican law reform body established for that purpose.

The objectives of the Law Reform Committee are consistent with those of other statutory law reform bodies. The Law Reform Commissions Act, 1967 of New South Wales confers on its Commissioners powers to perform, inter alia, the following:

"(i) simplifying or modernizing the law by bringing it into accord with current conditions;

(ii) adopting new or more effective methods for the administration of the law and the dispensation of justice; and

(iii) systematically developing and reforming the law."

The Law Commissions Act, 1965 confers on the Law Commissioners of England powers to perform various functions including the following:

"(a) to receive and consider any proposals for the re­form of the law which may be made or referred to them;

(b) to prepare and submit to the Minister from time to time programmes for the examination of differ­ent branches of the law with a view to reform, in­cluding recommendations as to the agency (whether the Commission or another body) by which any such examination should be carried out;

( c) to provide advice and information to government departments and other authorities or bodies con­cerned at the instance of the Government with proposals for the reform or amendment of any branch of the law; and

(d) to obtain such information as to the legal systems of other countries as appears to the Commissioners likely to facilitate the performance of any of their 1[1 clctions."

How are those goals to be accomplished?

Certain parameters automatically limit the manner and extent to which the goals of tije Law Reform Committee (Jamaica) can be achieved. The first parameter is that the members of the Law Reform Committee (Jamaica) are appuinted tu serve for three years. During tliis period the Committee functions on a part-time basis meeting for 2-3 hours on average once each month. The amount of time which the membership of the Committee can devote to making studied proposals for reforming the law is of neces­sity limited, particularly having regard to the demands on their time imposed by their other duties. The membership of the Committee consists of lawyers. These include those in the public service who have distinguished themselves by attaining certain specified offices. These are, one Judge of the Court of Appeal; one Judge of the Supreme Court; the Solicitor General or his nominee; the Director of Legal Reform or the Director's nominee, the Director of Public Prosecutions; the Chief Parliamentary Counsel; and a Resi­dent Magistrate nominated by the Resident Magistrates' Association. The membership of the Committee also in­cludes four rE'presentatives from the Jamaican Bar Associa­tion. The Legal Reform Division of the Ministry of National Security & Justice, which is a permanent full-time law re­form agency established since 1972, acts as a Secretariat to the Law Reform Committee and other Committees (which I shall refer to laterY It researches the matters which the Law Reform Committee has for consideration and sets in motion the procedure for the implementation into law of those recommendations which were made by the Com­mittee and approved by government. The Law Reform Committee, at present, consists of three lawyers (including the Director of Legal Reform who heads the Division) and a cadre of secretarial staff. The carrying out of these func­tions by the Legal Reform Division is designed to ensure that law reform projects can be achieved with more expe­dition.

Other jurisdictions with more resources at their dis­posal promote the reform of the law by establishing a statu­tory Law Reform body with full-time Commissioners. In­deed, section 1(4) of the Law Commissions Act 1965 (U.K.) provides that:

"( 4) A person who holds judicial office may be appointed as a Commissioner without relinquish­ing that office but shall not (unless otherwise pro: vided by the terms of his appointment) be re­quired to perform his duties as the holder of that office while he remains a member of the Com­mission."

The chief limitation as regards to expediting the pro­cess of law reform is however, the resources that are avail­able for this purpose. Most governments, and particularly

/ g0v.~rnments of small developing countries, grappling with the formidable obstacles of under-development, recognize th2t there are no votes in law reform and that expenditure 0!1 other taniY)hle projects such a, education, 2.~;riculture

housing, roads and other infrastructure etc. when measured against expenditure on law reform is likely to receive great­er electoral support. Accordingly, the governments of most developing countries generally devote an infinitesimal part of the Gross National Product to law reform. It is not al­ways appreciated that to carry out law reform properly is an expensive business which requires "very competent research staff with the ability to identify practical policy alternatives suited to community needs"; major expendi­ture on a well-equipped library to keep the research staff and law reformers abreast with the developments in and the experience of other jurisdictions as well as local conditions; and expenditure on consultation with members of the public. The 18th Annual Report of the Law Commission (U.K.) for 1982-3 (Law Commission No. 131 Appendix 4) state that the direct cost of law reform to that Commission was some £1.9 million sterling. fhe 14th Annual Report from the Law Commission of Canada covering the period 1984-85 state that the Federal Parliament appropriated $5,013 million to the Commission for the fiscal year April 1,1984 to March 31,1985. It is not always appreciated too, that even after the legislation has been enacted, the law reform process is not completed. Resources are still required to monitor its implementation and make im­provemen ts where necessary, e.g. training the personnel involved in its implementation, as well as explaining to those affected the reasons for the change.

It has therefore been suggested that one means of persuading governments to make more resources available for reforming the law is to make law reform more relevant by bringing it to the "living rooms of the nation" and by getting people to become more involved in the issues by consulting them before and during the law reform process. "Law touches the lives of everyone: it is therefore the busi­ness of everyone", not only lawyers, to participate in and respond to the changing needs of the society; to vocalize areas in which there is a need for change in the law; and to exert pressure on the government to increase expenditure on law reform. Advocates of this view feel that the legal profession in particular has a duty to alert the community to injustices whenever they appear, so that remedies may be suggested.

What does law reform seek to accomplish?

The ultimate objective of law reform is to achieve a greater degree of social justice for the society as a whole. In the process of determining the law reform programme by which this objective is to be achieved, various methods have been devised to achieve participation by the general public. However, the extent to which there can be public participa­tion depends initially on the resources that are available to the law reform agency. Where little resources are avail­able, this will impose serious limitations on the type of law reform programme that can be undertaken. The amount of resources available will determine the type of project that can be selected for reform and the depth to which it can be tackled. Projects for reform are either (i) of a specialist and technical nature or (ii) "the cre2l;"," ,J"

favourable climate 01 opInIOn for change". Whichever project is to be tackled however, will depend to a signific­ant extent on the resources available to that law reform agency and this will influence the method used. The follow­ing are some of the methods used:

(i) Research by Law Reform Agency

One of the methods used is for the research involved in the preparation of a Working Paper to be undertaken by the Law Reform agency itself. This is "a purely consulta­tive document containing an outline of the present law, an identification of any defects considered to exist and provi­sional proposals for reform". The Working Paper is pub­lished and circulated to relevant government departments; interested representative groups; the legal and national press and other news media, other Law Reform agencies and generally to those bodies from whom comment is parti­cularly sought. The general purpose of consultation is to get public reaction to the policy being proposed from which an assessment can be made as to the public's accept­ance of that policy. The comments received from the bodies amongst which it has been circulated arc firstly in the form of written observations and followed up by oral discussions and meetings. The results of the written ob­servations, oral discussions and meetings are usually reflect­ed in the final recommendation contained in the Report. The United Kingdom Law Commission acknowledges the Working Paper as its progeny and the corner-stone of its consultative process. This method has proved so successful that other law reform agencies have gradually adopted it as a desirable tool for law reform.

The method involved in this concept of consultation has been adopted in Jamaica, although not always called a Working Paper. It has been used by the Family Law Com­mittee (Jamaica), a body established in October, 1975, specifically charged:

"to examine the existing Laws relating to Divorce and other areas of Matrimonial and Family Law, and to make recommendations for changes where this is deemed necessary."

This Committee published its first Interim Report as a Green Paper on Divorce and Matrimonial Law in which it sought to arouse public interest and to test the public's perception as to the desirability of the reform proposed. The Interim Report recommended that the existing grounds for the dissolution of marriage be abolished and that divorce be granted on one single ground, namely that the marriage has irretrievably broken down. It also made certain other recommendations and invited members of the public or representatives of interested bodies who wished to express their views on the matters discussed in the Interim Report, to send their written observations to the Family Law Committee.

This method of consultation has also been adopted in respect of M<ltrimonial frore-rty Reform. The ',licrking

Paper by that name was published by the Family Law Com­mittee to make readers aware of the existence of certain options in respect of matrimonial property, including one "that a husband and wife should each be automatically entitled to a half share in the matrimonial home, and that tbe court should he given a discretion to divide other pro­perty between them upon the breakdown of the marriage." The Working Paper was also concerned with the wider question of the formulation of a new matrimonial property regime within which the desired changes in the law could be achieved. With this end in view, it canvassed the public's views on these and related issues.

The Criminal Advisory Committee of Jamaica has also used this method of consultation. It was appointed by the then Minister of Justice:

"to consider the formulation of -

(i) a Penal Code which would embody alllegisla­tion and common law dealing with criminal offences; and

(ii) a Criminal Procedure Code which would stan­dardize all procedure relating to criminal of­fences."

It has also published an Interim Report coming under the ambit of Codification of the Criminal Law and Procedure, entitled Felonies and Misdemeanours. This Interim Report addresses the question whether the existing distinction be­tween felonies and misdemeanours should be retained or abolished and the consequential changes, if any, which should be made to the law following any abolition. The Interim Report containing these recommendations was published with a view to eliciting comments from the public.

(ii) Commissioning Research

One method which is adopted when the subject matter is of a specialist and technical character is to commission academics or practitioners to prepare a Study Paper. This is a "detailed account of the law as it is, emphasizing any areas where doubt exists because of difficulties of construc­tion, lack of authority or conflicting authority. It sets out any criticisms which may have been levelled at the present law .... " and identifies the source from which such criti­cisms came and states any suggested remedies. It also states how any identified problem areas have been addressed in other jurisdictions.

This method of reform was used in Jamaica in 1984 when a study of the law relating to Children was com­missioned through the provision of financial support from UNICEF and the Ministry of Justice (Jamaica). The Report entitled "The Law Relating to Children" was prepared by Leighton Jackson, a Lecturer-in-Law of the University of the West Indies, Cave Hill, Barbados. It is an "attempt to review the law relating to children in Jamaica, making a comparative analysis of law in other jurisdictions and (mC!kir,gj recommenoah)ns for reform."

(iii) Seminar

Thc Seminar is another method used by Law Reform agencies to consult with perscms of wide and ranging opinions. These persons are usually invited to participate in discussions on the suhject mattcr being considered, by giving their views on the effects the proposed legislation are likely to have, as well as the likely impact on particular

bodies.

(iv) Social Scientists

It has also been suggested that the research skills of the social scientists could be harnessed in identifying the areas of the law which the public or particular segments of the public perceive to be in need of reform. Accordingly, polls could be conducted to scientifically determine the views of the public in this regard. Such polls could also be utilized in the decision-making process. Thus when an area of law is actively being considered, polls could be under­taken to ascertain the views of members of the public. Support for a particular option by members of the public would thereby influence the decision-makers as to the course to be adopted. Utilizing these skills would, however, require to an even greater degree, a substantial amount of resource even more than that required for the methods al­ready referred to. The harnessing of skills of the social scientists would involve conducting surveys to scientifically determine people's views on particular issues. In a country like Jamaica, however, where the level of illiteracy is ac­knowledged to be high, this process would need to be pre­ceded, not only by the distribution of literature giving written information of the issues being considered, but disseminating this information also through the audio visual media so as to familiarize those members of the general public with the legal concepts in issue and the consequences of adopting a particular course, so that they can make an informed decision.

The Law Reform Agencies in Jamaica and the Selection of

Priorities

The law is dynamic, not static, and therefore as society evolves there is a wide range of topics that require the at­tention of the law reformer. The rapid development of science and technology during this Century present prob­lems in the area of information sciences such as the linking of computers by telecommunications and the phenomena of white collar crimes; problems of bio-ethics involving the law relating to in vitro fertilization (test-tube babies); cloning and artificial development of human organs; abortion and the use of feotal tissue for experiments and therapy; genetic engineering and experimentation; the law and treatment of children born severdy retarded or deform­ed and euthansia; to name but a few. Some of these issues might not seem to be relevant to us in Jamaica at this time, p'u,t a,s we develop they will need to be addressed. Two reported cases have already come before the Jamaican criminal courts involving tlw use of computers which sug­gests that that concern is all immediale O:1e. Thrse cases are

R. v. Paulette Williams (~.M. Criminal Appeal No. 125/79) and R. v. Margaret Heron (R.M. Criminal Appeal No. 1/83).

There are also other subject areas considered ripe for reform and the government, in its wisdom, has established specified Committees responsible for those subject areas to which it feels priority shuuld be given. Some of these Committees have already been mentioned. They are:

(i) The Family Law Committee, which as its name implies, addresses matters relating to the family. These matters would include marriage, the dissolu­tion of marriage, the distribution of matrimonial and other property following divorce; custody, guardianship and the status of children; common law relationships; the consent required for medical treatment of the adolescent; what considerations should determine whether an abortion is perform­ed, and such matters.

(ii) The Criminal Advisory Committee deals with areas covering law and the offences which it feels should be embodied in a Penal Code. This Committee is also required tf) formulate and standardize proce­dures relating to criminal offences, in a Criminal Procedure Code.

(iii) The Committee to Review the Court System was established in 1975 to:

"examine the existing courts systems with a view to making proposals for the simplifica­tion of the Courts System where necessary". The Committee has interpreted its terms of reference to mean that its law reform pro­posals should be aimed at "the simplification of court forms and procedures; the reduction of the costs of legal representation; expediting the administration of justice; reducing arrears of work; and the reduction of operational costs, where possible."

(iv) Reference has already been made to the Law Re­form Committee.

There have also been a number of Ad Hoc Committees established in the post-Independence years. These include:

±(a) The Committee which sat between 1964 and 1965 and examined legislation and practices af­fecting hire purchase, bills of sale and other related forms of credit sale. Its recommendations resulted in the enactment of the Hire Purchase Act, 1974.

(b) The Committee which sat between 1968 and 1969 to examine the laws under which the Adminis­trator General operated. This Committee also examined the Administrator General's role, powers and functions with regard to private Tru'st Cor­

porations operating in Jamaica.

(c) The Committee established in 1967 to advise the th~n Minister of Legal Affairs on the necessary

steps to be taken to implement a resolution of the House of Representatives that there should be

fusion of both branches of the legal profession. The recommendations of this Committee resulted in the Legal Profession Act, 1971.

(d) A Working Party appointed in 1972 to examine and report on the introduction of an Ombudsman System in Jamaica and on the appointment of an Ombudsman. They submitted their report in 1973 which was considered by a Joint Select Committee of the House of Representatives and the Senate. The Ombudsman Act, enacted in 1978 was based on their recommendatiohs.

(e) A Committee appointed in January, 1981 to re­commend legislation for the establishment of the Office of Contractor General. It submitted its report in March, 1982 in which it identified, inter alia, the technical detail~ which needed to be em­bodied in legislation authorizing the creation of the Office of Contractor General. These recom­mendations resulted in the enactment in 1983, of the Contractor Gerteral Act.

It is the government of the day, however, which ulti­mately determines which matter should be given priority, when it decides when or whether a proposal coming from any of these forementionecl Committees will be implement­ed. This practice is not confined to Jamaica. Accordingly, where a law reform agency recommends changes in the law which, because of its controversial nature or for other reasons it is known to be unacceptable to the government of the day, such recommendation is likely to be shelved and remain unimplemented. It is this shelving of proposals hy governments that have been the source of frustration amongst many law reformers. This is particularly so where these persons have given unstinting and voluntary service. For many law reformers the shelving or non-implementa­tion by government of their proposals, is an agonizing ex­perience, which sometimes manifest itself in resignations or prolonged absences from meetings.

Are Law Reform Agencies Independent?

To what extent, if at all, can a law reform agency be s'lid to be independent if the matters it recommends for reform is determined ultimately by the government of the day? As a law reform agency is usually a non-political, independent, statutory or advisory body that is responsive to the needs of the community as a whole, it exercises its independence in the way in which it selects topics for reform. It would therefore select a topic for consideration on the basis of reason, the needs of the community as a whole and in a non-political way. One guarantee of in­dependence, it is said, is that successive governments and Ministers want the best advice available, and they know that this objective can only be attained by encouraging the agencies to be as L"1dependcnt and as rational in their jud~­me;]t 3S possibl,~.

In selecting a topic for reform, however, the law re­form agency needs to liaise with Departments which in their day-to-day operation involve working with the execu­tive government. It is perhaps for this reason, namely to ensure that there is contact with certain departmental of­fices so that the implications of projects can be assessed within the general framework of the executive govern­ment's policy, that in the composition of most of the Law Reform Committees in Jamaica, certain specified offices are represen ted.

The composition of the Law Reform Committee has already been given. The membership of the Family Law Committee consists of a Court of Appeal Judge as Chair­man, a Supreme Court Judge (since elevated to the Court of Appeal), a judge of the Family Court, a Social Worker, the Director of Legal Reform and two Attorneys-at-Law. The membership of the Criminal Advisory Committee con­sists of a Court of Appeal Judge, a Supreme Court Judge, the Director of Legal Reform, the Director of Public Pro­secutions and two Attorneys-at-Law.

The machinery by which appointment of members to the law reform committees in Jamaica is made, attempts to ensure the independence, of those members appointed as well as some co-ordination with specific Departments of government. It is perhaps for these reasons that amongst the proposals put to government, a reasonable number of them have been or are being implemented. The most no­table are:

(i) The Status of Children Act, enacted in ]976 which seeks to place illegitimate children on the same basis as legitimate children.

(ii) The Judicature (Resident Magistrates) (Amend­ment) Act, 1973, which extended the jurisdiction of the Resident Magistrates' Court in relation to certain forgery offences.

(iii) The Poor Prisoner's (Amendment) Act, enacted in 1964 which extended the cases in which legal aid may be granted.

(iv) The Judicature (Resident Magistrates) (Miscel­laneous Provisions) Act which extended the Com­mon Law jurisdiction of Resident Magistrates' Court in all classes of action instead of negligence only.

(v) Offences Against the Person (Amendment) Act, enacted in 1967 which provides that consent is no defence to charges of indecent assault on a young person under the age of 14 years.

(vi) The Judicature (Family Court) Act enacted in 1975 which established a Family Court of the Corporate Area of Kingston and St. Andrew. An amendment to this Act in 1978 established out­side the Corporate Area other Family Courts.

(vii) The Criminal Justice (Re/orm) Act enacted in 1978 which rrevided to the ~Jurj a wider I3n[,e

of sentencing options including community service orders.

Conclusion

The intention of this Article was to indicate the im­portance of law reform as a veiJicle for the systematic review of the law ~s a means of achieving a greater degree of social justice for the society as a whole. 1t is recognized that to undertake this task effectively a considerable amount of resources are required which poor developing coun tries like Jamaica do not have. In the scale of govern­ment priorities, other forms of development are usually considered more pressing. 1t is submitted, however, that the general public should become more involved in the processes of law reform since any changes in the law will ultimately affect their lives. It is members of the public who will be required ultimately to implement any changes made and accordingly their lack of understanding of the concepts or objectives of the legislation can frustrate the process. The best laws can be placed in our Statute Books, but if improperly applied or not applied at all will amount to an exercise in futility. It is also submitted that the public can put pressure to bear on government to make resources available for the refom of the laws or to make optimum use of the resources it can release for this purpose. Ex­amples suggested are closer co-operation between countries with similar legal systems such as Commonwealth coun­tries, and co-operation also amongst small developing coun­tries, to avoid duplication of research projects or identical issues, where the countries concerned share a socio-cultural­political background. Law reform now requires a multi­disciplinary approach in which the legal, medical socio­logical, philosophical and other skills need to be galvanized. These skills are generally in limited supplies in developing countries. The pooling of these skills, the exchange of ex­periences and ideas are forms in which it has been sug­gested the co-operation can take place. Economic co­operation exists within our region: there is no reason why co-operation in law reform should not.

REFERENCES

+ The "Ideal Law Reformer" extract from address by Chief Justice of Hong Kong, Sir Denys Roberts, de­livered at 7th Commonwealth Law Conference in Hong

Kong.

*

1982 Annual Report of the Law Reform Commission of Papua, New Guinea.

There was an "abortive attempt" to establish a Law Reform Committee in 1959 for an initial period of three years. That Committee interpreted its term of reference to mean that it could not take the initiative to reform areas of the law but had to wait for pro­posals to be placed before it, for its consideration. No proposals were, in fact, submitted to the Committee and it met once in 1961 and expired in 1962 without meeting again.

± Law Reform in Commonwealth - 1977 Meeting of Commonwealth Law Reform Reform Agencies --

The Politics of Law Reform - A view from the Inside _ Professor Stephen Cretney - The Modern Law Re­vicw V. 48, Septemher 1985, No.5. Legal Resource Needs in Small States: The Need for New Initiatives - Lecture delivered by Professor Keith Patchell at the Decennial Lecture Series at the Faculty of Law of the University of the West Indies in Barba­

dos, March, 1981.

14th Annual Report - Law Reform Commission of Canada. Annual Report of the Fiji Law Reform Com­

mission. R. v. Margaret Heron R.M. Criminal Appeal No/1/83.

R. v. Paulette Williams R.M. Criminal Appeal No. 125/ 79.

Ghana Law Reform Commission 6th Report for period 1st January, 1983 to 31st December, 1984.

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Legal Writing and Publishing in the

Commonwealth Caribbean*

By Sir Fred Phillips** ** Barrister-at-Law, and former Governor of SL Kitts/Nevis/

Anguilla, 1967-1969.

The subject of legal writing and publishing in small jurisdictions such as the Commonwealth Caribbean has received considerable attention during the 1970's and 1980's from institutions such as The International Legal Education Association (which I shall from now on refer to as the C.L.E.A.), the Council of Legal Education (West Indies) and a number of individual researchers. Discussions have ranged from a consideration of the types of literature which ought to be produced to whether small jurisdictions,

with limited resources at their disposal, should aim at pro­viding legal literature both for lawyers and laymen or whether they should not content themselves with concen­trating on the needs of the fonner group [1].

Professor William Twining of the C.L.E.A., now Quain Professor of Jurisprudence at London University, is himself a keen advocate of provision for both lawyers and laymen. But in a recent useful and comprehensive Report he has recommended two models for developing countries, the most comprehensive of which focussed on the needs of lawyers. This model, which he called "The Long Term Aspirational Model", included:

(1) A comprehensive, regularly updated statute

book; (2) A system of law reporting in which the cases

published are selected not only for their prece­dent value, hut because they elucidatc aspects of local law i.n which due account is taken of the need for consistency of decisions in, and for public information on the work of, lower courts and tribunals;

(3) A body of reference works such as digests,

encyclopaedias, procedural works;

(4) Periodicals;

(5) A regular bibliographical service; and

(6) A body of textbooks, casebooks and legal com­mentaries which further rather than frustrate the desired learning objectives at different levels of legal education. [2]

In such jurisdictions as the U.S.A., Canada and Great Britain where funds, personnel and the technology to pro­duce a variety of legal publications are available, Professor Twining's long-term aspirational model may seem relatively

simple and attainable. !lowcver the reality is that few S'l121I jurisdictions 011 this side of the w~ter can manage to

*The opening address given at the Second Annual General Meeting of CARALL on 22nd July, 1986.

produce legal literature either in all six categories itemised by Professor Twining; or according to the standards which he recommends, or at all. Bearing this in mind, I shall now undertake a survey of legal writing and publishing in the Commonwealth Caribbean to see whether the model has any application to what is actually happening.

I need hardly remind so educated and distinguished an audience that if Bermuda, the Bahamas and Belize are in­

cluded, we are looking at 18 Commonwealth Caribbean jurisdictions. Of these, 12 achieved independence since 1962 and 6 are still British dependencies.

LEGIS LA nON

It has long been accepted that Governments should

publish primary sources of law as part of their undoubted responsibility to make information on the state of the law available to citizens. In the Commonwealth Caribbean legislation is published soon after becoming law in leaf1et format and in most cases is reproduced in annual volumes at a later date. In addition, revised editions of the law in force are published by, or on behalf of, Carib bean Govern­ments but as we shall see this is NOT done on a regular basis and until recently did not always include subsidiary legislation. Do I need to say why? We just do not have "the bread".

The publication of these revised editions of laws commenced in the seventeeI1lh century with volumes for Barbados, Bermuda and the Leeward Islands. During the present century, editions were prepared for most territories during the 1920's; for other between the 1940's and mid-1960's; and for 6 territories between 1970 and 1985. These last-mentioned editions of laws were published in looseleaf format which ought to render updating easier.

The remaining 12 territories which did not publish revised laws between 1970 and 1985 include the Eastern Caribbean States. Periods ranging from 25 years in the case of the British Virgin Islands to 50 in the case of S1. Vincent have gone by since the publication of the last revised editions of the laws of these territories. I hope everyone will appreciate that I mean no criticism of these countries which are finding it increasingly difficult in these hard days to keep their heads economically above the water; but I am simply outlining the facts of life.

Where the latest editions of laws are in bound volume

hrmat, ten·yeClf inter'iil], bct'.',:~Ci' editions are COllsidcrerJ

,- ~ 1, T l' Tl 1 .\ h.! T A \: iT .. 1.' ,) A 1) ~ ,', 1..-:-

adequate. Where the looseleaf format is employed, as in Barbados, Belize, Jamaica and Trinidad and Tobago, annual updating is the ideal. However, the twentieth century

history of publication of revised laws in the Commonwealth Caribbean shows that Governments are finding it increasing· ly difficult to publish revised laws even as frcqucntly as every twenty years. This situation has resulted from the fact that more laws are being passed for we must remember that the Governments are fighting not only, hard times, but also hard drugs. But what further complicates the situation is the fact that publishing costs have been escalat· ing to the point where it costs EC$603,243 (i.e. BDS$446, 400 or US$223,200) to produce 200 copies of a 9·volume set of laws. [4]. In addition, the law revision exercise in most territories has to be preceded by extensive law reform, and personnel to undertake those tasks are often not easily

available. Even those territories which have published their latest editions of laws in loose·leaf format have not been updating them as often as they should, on account of cost and personnel factors. In this connection we must not forget the Biblical aphorism that "To him that hath shall be given" and the rest!

All this means that it is difficult to ascertain the law of most countries in the region with certainty and speed as a result of which new revised editions, especially for the Eastern Caribbean states, are urgently needed. Indexes produced by the Faculty of Law of the University of the West Indies and the British Development Division have helped considerably and we welcome this useful and timely work. Indeed, in this matter 1 would like to single out for special mention what is being done by Sir Clifford Hammett at the University of the West Indies under the aegis of the British Development Division in which he continues to produce Consolidated Indexes of Statutes and Subsidiary Legislation for the various territories. As one always engaged in writing and researching I find these Indexes of inestimable value and I am sure every effort should be made by the University to continue this service at all costs. But these merely record the titles of laws in force. There is no subject approach: so that if the researcher does not know the exact title of the Act for which he is search· ing, he has problems. As you say in Trinidad, "Darkness". I hope that it will be pOSSible to refine the Indexes by introducing that subject approach in due course.

LAW REPORTS

Law Reports are important to the common law legal

system mainly because of the operation of the doctrine of stare decisis or judicial precedent. They are also essential to the development of a local jurisprudence and to the operation 0 f the rule 0 flaw, enabling the community to know in advance what the state of the law is. Accordingly just as collections of statutes ought to be published periodi· cally, so too should law reports. At present, the West

:' Indian Reports, published since 1960 by Butterworths, is tIle only regional series extant. With thc publication of Volume 31, Butterworths extcnded coverage of the reports te, the fl2hilmc.s and Belize ,;0 tklt casc~ hC2ru in or Oll

appeal from all Commonwealth Caribbean territories are included. Bermuda is the exception however I do not believe it considers itself to be in the Caribbean, but outside New York.

With regard to territorial or unit law reports, Guyana,

J 3111aica, :lIld Trinidad and Tobago have been publishing decisions of their superior courts since the nineteenth century and recently the Government of Barbados commenced publication of the Barbados Law Reports. To date 8 volumes of the Barbados series have been published. The Jamaica Law Reports are no longer being published, and although the Guyana and Trinidad & Tobago series have apparently not been officially abandoned, no volumes have appeared in recent years. [5]

These territories and the others all depend on the West Indian Reports which have been criticised on several grounds: one of which is that the time lag between delivery of decisions and their publication is too long, being at least five years, and the other that too few cases from the Eastern Caribbean territories are published [6] .

It has been difficult for territorial law reporting in the Commonwealth Caribbean to be sustained mainly because of lack of personnel with sufficient time to undertake the editorial responsibilities, and lack of adequate financing. The question of financing is easily understood. Firstly, Governments, hard pressed to find money to update their statute laws and faced with pressing education, health and other needs, are unlikely to regard it as a top priority to undertake law reporting and on an ongoing basis.

In many developed countries commercial publishers have stepped into the gap created by the Government's inability to act and have published subject and general series of law reports. There is no such luck in the Common· wealth Caribbean. Most of the companies in the region with trade·names including the word "Publishers" are in fact printers, lacking the funds to underwrite scholarly works such as law reports which are costly to edit, typeset and plOduced in hard bound format. For example, in the case of the Barbados Law Reports, each volume (irrespec­tive of size) is sold for BDS$50 or US$25: this price being heavily subsidised by the Government of Barbados.

This survey indicates that the situation in relation to law reporting leaves much to be desired. The Faculty of Law Library, U.W.I., Cave Hill, Barbados, is planning to resume publication of its annual index of cases received from Commonwealth Caribbean Courts, with expanded subject headings, but according to information received the Library needs to acquire appropriate computer hardware and software. And once more we seem to draw a blank.

SECONDARY LEGAL PUBLISHING

(1) REFERENCE WORKS

Professor Twining recommended the publication of reference works such as digests, encyclopaedics and pro· cedural works. There is at present (needless to say) no Caribbean equivalent to Halsbury's Laws, The Encyclopae· dia of Forms and Precedents, or the Supreme Court

Practice. In fact, these tools published in Great Britain are used as much by the legal profession in the Commonwealth Caribbean as they are by the pro fession in Great Britain.

Of particular importance is the Supreme Court Practice, commonly referred to as "The White Book", which con­

tains rules of the Supreme Court u f Great Britain, prescrib­ed forms, orders relating to cuurt fees and stamps, practice directions and other rules and orders dealing with Court procedure. It is important to practitioners in the Common­wealth Caribbean because it is used as an authority in areas

not covered by the local Supreme Court rules.

With reference to the local publication of procedural works, in 1974 a guide to fees and costs in the Supreme

Court of Jamaica was authored and published by Mr. Paul Levy, a Jamaican Attorney-at-Law [7] but to my know­

ledge no similar work has been published in any other territory.

There are no ambitious Caribbean reference and pro­cedural works for several reasons. Firstly, the Supreme Court rules in force in the region are based on those of the United Kingdom, and some may argue that there is conse­quently no need for a local work of this type. Secondly, such reference works are expensive to produce, requiring a permanent editorial staff to cope with the frequent up­dating which, like the production of revised laws at la-year intervals, would be beyond the resources of Caribbean

Governments and commercial publishers. These works would have to be undertaken by international publishers and it is unlikely that any of them would contemplate such

ventures because small local market, would make the exercise uneconomic.

(2) LEGAL PERIODICALS [8]

Legal periodical publishing in the Commonwealth

Caribbean has likewise been erratic. The first regional periodical of which I am aware - the Caribbean Law Journal was published by a number of Jamaican practi­tioners between 1952 and 1953. This was followed Jleuly twenty years later by the Jamaica Law Journal which begaJl its life in October 1970 as the organ of the Jamaica Bar

Association and seems to have expired in 1975 when financial difficulties led to its suspension. This is a great pity for us in the entire Caribbean for the Jamaica Law

Journal was a forum for serious research findings and pro­vided an enlightened service which, although geared primarily for Jamaican lawyers, could be read with ad­vantage throughout the Caribbean. The J oumal was taken

over by the Council of Legal Education in 1976 and re­named the West Indian Law Journal which has since been published twice yearly, although no issues have seen the

light of day since 1984. The West Indiall Law Journal continued to maintain the high standards set by the Jamaica Law Journal, but it also very properly acquired a Caribbean flavour -- which was enhanced when, for a brief period, it contained a useful digest of cases from Common­

wealth Caribbean Courts prepared by Dr. Francis Alexis who has since left th,~ University of til(' West Indies for hir,hcr service ill his j:ati'i~ law!.

Another periodical with a regional orientation is the Caribbean Law Librarian -- your publication - which was

launched in 1985. To date, issues published have contained interesting and informative articles and items not only of interest to Law Librarians but to members of the legal

pILJfession as ,\(;]1. 1 su walIllI)' congratu13.te you fl'! producing this work which 1 wish every success.

Other periodicals published during the last decade include the Guyana Law Journal, published by the Depart­ment of Political Science and Law of the University of Guyana, the Guyana Bar Association Review, The Lawyer, published by the Bar Association of Trinidad and Tobago, the Students' Law Review, Obiter and The Young Attorney published respectively by the students of Law, U.W.I., Cave Hill; the Hugh Wooding Law School, and the Norman Manley Law School. Several articles on aspects of Com­

monwealth Caribbean Law have been published in these works and in international journals such as The Anglo­American Law Review, Lawyer of the Americas, Public Law and the International and Comparative Law Quarterly.

What is clear when one reads all of these articles and when one considers the research done to produce them is that we in the Caribbean are not lacking in the human resources for tackling our legal problems. What we lack (and lack badly) is the wherewithal and the technology for

high quality publishing and one only becomes aware of this vacuum when one comes into contact (as I havc been

privileged to do because of my writings) with an organisa­tion like Oceana Publications Inc., Dobbs Ferry, New York

-- the publishcr of my three books.

It is very difficult to trace all these publications but most of them will be included in Velma Newton's C0111-

monwealth Caribbean Legal Literature - the second edition of which is being published later in 1986 by the Research and Publications Committee of the University 0 f the West Indies, Cave Hill Campus. And I heartily recommend this

volume to legal practitioners, legal scholars, librarians and the general public, as well as her Bibliography on Civil Rights with Special Reference to the Commonwealth

Caribbean published by the Institute of Social and Econo­mic Research of the U.W.!.

(3) BIBLIOGRAPHICAL SER VICES

The main retrospective bibliographies in existence are the First Edition of the work by Velma Newton to which I have just referred and which was a supplement to the

Bibliographical Guide to Law in the Commonwealth Caribbean compiled by Keith Patchett, a former Dean of

the Faculty of Law, U.W.I., and Valerie Jenkins, a former Librarian of the same institution. Unfortunately, although these works are well known at Cave Hill, they have not been widely publicised in the rest of the Commonwealth Caribbean_ I hope you will do your part in correcting this defect.

In terms of current awareness, bibliographical services exist in the Caricom Bibliography, the annual bibliographies cc'npiJcd by the national libraries of some Commonwealth

C;ribLean countri~s, 8nd the vario\J~ lists of boldings C0111-

piled by the libraries of the Faculty of Law at Cave Hill, the law schools, some supreme courts and Attorneys-General departments. Unfortunately, like the Newton and departments_ Unfortunately, like the Newton and Patchett bibliographies that I have mentioned, these accessions lists are not widely circulated. This means that an important veJJJcle for flI1ding out what is actually beillg publisilcd ill the legal Jield in the Commonwealth Caribbean is not readily available to'the average lawyer.

(4) TEXTBOOKS, CASEBOOKS, ETC {9!

Until the 1960's commentaries on the law and legal

systems of the Commonwealth Caribbean appeared mainly in comparative studies relating to the British Empire; but with few exceptions, notably the works of the Guyanese Mr. Justice A.V. Crane (later Sir Alfred Crane) on the Law of Compulsory Motor Vehicle Insurance, Unlawful Posses­sion and Workmen's Compensation, they focussed on constitutional developments. This, I submit, is understand­able for the twentieth century history of the Caribbean has been largely one of constitutional change. From the late 1960's an added impetus was given West Indian scholars by the establishment and demise of the West Indian Federation, the attainment of political independence hy many territories, the Grenada Revolution, the establish­ment of the Organisation of Eastern Caribbean States and later by the invasion of Grenada.

These developments were collectively responsible for the publication of a number of comprehensive legal and

law related monographs. These studies include Dr. Lloyd Barnett's Constitutional Law of Jamaica (1977); Dr. Francis Alexis's Changing Caribbean Constitutions, (J 983); and my own publications Freedom in the Caribbean: A Study in Constitutional Change (1977) and West 1ndian Constitutions; Post-independence Reform (1985). The Grenada Revolution has also been extensively commented on and analysed in works such as William Gillmore's The Grenada Revolution (1984); Maurice Bishop's Maurice Bishop Speaks (J 983); Richard Jacob's Grenada: The Route to Revolution (1979); and Fitzroy Amburstley's Grenada: Whose Freedom? (1984).

As some of you may be aware, I was given the task of being Chairman ill 1985 of a Commission to review the Grenada Constitution and with me were some quite dis­tinguished Caribbean jurists, viz. Professor Ralph Carnegie, Mr. Brynmor Pollard, Mr. Barrymore Renwick and Mr. Michael Andrew. I think I would not be considered im­modest if I claim that our Report which has now been published should add substantially to a knowledge of some of the strengths and weaknesses of our present West­minister-type constitutions and enlighten our readers as to desirable amendments to existing Constitutions. A great deal of what was said in the Report is applicable to the \}'ider Caribbean and we can only hope that the Report wijl be widely disseminated.

In similar vein, Professor Carnegie's papers which are appended to the ,Report of the Commission appointed to review the Constitution of Barbados in 1979 have made an

CARIBBEAN LAW LIBRARIAN - 46

excellent contribution to Caribbean legal literature and

should similarly be distributed throughout the Caribbean.

I cannot help reflecting at a forum like this that Carib­bean scholars would find much food for constitutional thought in these two publications for we must try to profit by each other's researches and it is wasteful for each jurisdiction to retrace steps already covered in other juris­dictions where considered legal writing is concerned.

In addition to the above works, a number of articles discussing aspects of constitutional law have also been written, mainly during the post-I970 period. These include articles discussing The Bill of Rights provisions in the Independence Constitutions by Professor A.R. Carnegie, Drs. Alexis, Okpaluba and Barnett; The Police and Civil Rights by Frank Phipps, Michael Dodd and Delroy Chuck: The Right of the Individual to a Speedy Trial by H.A. Fraser, Delroy Chuck and Dennis Morrison; Freedom of the Press by Margaret Demerieux and Dorcas White: Property Rights by Dr. Fiadjoe, Mrs. Stanford-Johnson and Kenny Anthony; Aspects of Administrative Law by Drs. Alexis, and Okpaluba; and also by Endell Thomas and Prof. Carnegie. These are all excellent papers which all legal practitioners and students should read with profit and pleasure.

The Caribbean area is also greatly indebeted to the Institute of Social and Economic Research of the Univer­sity of the West Indies for the great interest this institution has taken in publishing some useful monographs and occasional papers as well as to the authors themselves.

Here are some of the monographs:

The Politics of Constitutional Decolonisation Jamaica: 1944-1962 by Dr. Trevor Munroe;

Survey of Social Legislation in Jamaica by Gloria Cumper;

Land Law in Belize by Nigel Boland;

Legal Literature and Conditions affecting Legal Pub­lishing in the Commonwealth Caribbean: A Biblio­graphy by Velma Newton;

Compulsory Arbitration in Jamaica by Walter G. Gershenfeld;

A bandonmel1t of Children in Jamaica by Erna Brodber;

Statutory Regulation of Collective Bargaining by Chuks Okpaluba; and

Crown Colony Politics in Grenada: 1917-1951 by Dr. Patrick Emmanuel

We also owe a debt of gratitute to the Extra Mural Department of the University of the West Indies for the monographs published by the prolific Gloria Cumper on Family Law in Dominica, Jamaica, Antigua, St. Lucia, Grenada, and St. Vincent - presented at a Workshop on Social Legislation relating to the family and the child in the Caribbean held in St. Lucia in 1976.

The second impetus to post-1960 legal writing and publishing in the Commonwealth Caribbean was the estab-

Iishment of the Faculty of Law at the University of the West Indies in 1970. Scholars teaching and researching at Cave Hill have at their disposal a wealth of West Indian primary legal material not easily available elsewhere in the Commonwealth Caribbean. They have (as I have indicated) made good use of the resource to publish articles and monographs. Bllt I Vl'nture tu suggest that there is milch more to be done by West Indian scholars and lawyers.

A few of the publications in areas other than constitu­tional law shoulc be referred to at this point. Professor Keith Patchett, first Dean of the Faculty of Law, University of the West Indies, who co-edited The Bibliographical Guide to Commonwealth Caribbean Law also published a pioneering study on the reception of law in the West Indies in the Jamaica Law Journal, 1973. Works of substance have been published as short monographs or other lengthy articles by:

Drs. Chaudhary and Okpaluba on Labour Law;

Dr. Liverpool 011 The Cil'il Code and Land Tenure in St. Lucia;

Delroy Chuck on Capital Punishment and other aspects uf criminulugy;

Nurma Forde and Leightun Jacksun on Aspects of ramily Law;

Anthony Bland on The Law of Domicile and Charit­able Tnlsts;

Andrew Burgess and Dr. Chaudhary on Contract Case Law.

Faculty of Law staff have also written shorter articles

on the Proper Law, Termination and Damages ill the Law of Contract, on Land Tenure in most of the Caribbean Territories, The Jury, Juvenille Dclinquency, Legal Educa­tion, The Legal Profession, Prison Reform, The Law of the Sea, Areas of Tortious Liability, Inheritance and Succession and many other areas.

In 1972 The Council published a monograph on the developments leading to the establishment of a West Indian system of legal education entitled Legal Education in the West Indies, 1963-72 (1972). The Council also provided part of the funds needed for collection of data on the research practices and information needs uf the Common­wealth Caribbean legal profession. A few monographs such as Claude Denbow's excellent work Life 1nsurance Law in the Commonwealth Caribbean 1984 have also been pub­lished by staff of the Council. A greater number of well­researched papers have been published by the Director and the actual staff members of the Council, ably led by in this

respect by the former Director of the Council of Legal Education, Dr. H. Aubrey Fraser, who has himself contri­buted articles on Land Law; Civil Rights; Chattel Houses; Wire Tapping; and the Right to Privacy; Legal Education and Co-operation and on the Grenada Revolution. Dennis Morrison has written on the Reception of Law in Jamaica and on the Right to a Speedy Trial while Dorcas White has dealt with Criminal Law and Criminal Procedure.

A former member of the staff of the Norman Manley has also contributed on some aspects of International Law.' that member being Donald Trotman who happens now to be the Director of Public Presecutions in St. Vincent where this address is today being given. I feel that our warmest felicitations should be conveyed to these

dedicated sernllts llftlw law

Nor must we forget the good wurk at present being done by Law Commissions in Jamaica, Trinidad and Dominica. In Jamaica the Commission has as its Director of Legal Reform an outstanding Queen's Counsel, Mrs. Shirley Miller: it has recommended reform in various aspects of family law; it has dealt with penal reform and reforms related to the administration of justice: with the status of children; with maintenance, property and consti­tutional law. In Trinidad and Tobago the Commission is headed by the distinguished former justice of Appeal -Mr. Ulric Cross _.- and that Commission has been actively addressing itself in the past few years to the rationalisation and consolidation 0 f sexual uffences, including incest; to the establishment of a Family Court which will enable family matters to be dealt with at both a magisterial and a High Court level and which will provide for an Official Guardian to look after the interests of children and dis­advantaged persons in need of legal prutection and assis­tance - a post which has for many years shown itself to be of great value in the Province of Ontario, Canada.

The Trinidad Law Commission has also been carefully studying consumer protection legislation as well as Land Reform; and in this latter connection it has recommended

reform in such matters as the control of rents; squatters titles; and easier arrangements for the registration of titles generally. It is both a law reform and law revision

body. A similar body has recently been set up under the veteran U.N. Expert in Law Revision - Mr. F.O.C. Harris­who brings with him great expertise in the field, gained not only from his governmental experience in the Caribbean in the defunct Federal Government and the Cameroons, but from working in this area under the auspices of the U.N. in such countries as Malawi, Bahrain, Guyana and Trinidad and Tobago.

It is a pity that time has not permitted our private practitioners in the region to publish much: thus sharing their experience with the younger generation 0 f lawyers. This can in large part be attributable to busy schedules and the fact that practitioners tend to consider the province of legal writing to belong to academics who, in theory at least, have the time and access to materials to conduct research. However, it is encouraging to note that three younger practitioners - Martin Daly of Trinidad and Tobago, Ursula Khan and Paul Levy of Jamaica - have published books on personal injury awards. Also a number of other practitioners - again mainly from Jamaica and Trinidad and Tobago - have published articles of interest to other practitioners in the West Indian Law Journal and

The Lawyer. It is, however, a great pity that such great (now departed) stalwarts in the law like Norman Manley,

CARIBBEAN LAW LIBRARIAN - 47

Sir John Carberry, and J.A.G. Smith of Jamaica; like Sir Erskine Ward, Sir Conrad Reeves, Keith Walcott and

Sir Allan Collymore of Barbados; like the Whartons, Sir Hugh Wooding, C.T.w.E. Worrell, Sir Lennox O'Reilly and Guy O'Reilly, H. Hudson Phillips and Sir Courtenay Hannays of Trinidad and Tobago, have not all left their implillt ill the ilJTIn of substantial legal literature [OJ

the benefit 01 genc!ations yet unborn. At the same time

let me commend to all those who are interested in the development of the law and our legal system in this area the volumes of selected speeches by that illustrious son of the Caribbean, Sir Hugh Wooding, which was edited by H. Aubrey Fraser. It is entitled Collection of Addresses by Sir Hugh Wooding and was published by the Govern­ment Printing Office, Port-of-Spain, Trinidad, ill 1968.

What about members of the legal departments of Governments? Often they prepare papers on various aspects of law as background material when the introduc­tion of legislation is being considered. Unfortunately, most of these papers are and remain ullpublished; and the law officers and their staff are usually so hard-pressed that it is difficult for them to do much else. Dr. Shahabuddeen, Attorney-General of Guyana, is one of the few dignitaries holding that position in the Commonwealth Caribbean to have written major works on the constitutional develop­ment, the legal system, the· industrial law and the role of lawyers in the development of his country. He has also been editor of The GuyalJa Law Reports for many years. He deserves our grateful thanks as his works- which must be undertaken at great personal sacrifice- will stand out as a monument to his erudition and dedication.

The above survey of monograph and article publishing in the region reveals that although numerous articles have been published in many areas of law, the relatively few comprehensive monographs have been primarily in the field of Constitutional Law, Contract Case Law, Family Law and Labour Law. This means that, except in these areas, the main works to which students and members 0 f the legal profession have constantly to refer, some 16 years after the establishment of a local system of legal education, are still works based on English legal materials. I am convinced, though, that before long our lawyers -- young and old, academic and practising - will make a substantial contribution to legal literature in such fields as the law of property, criminal law, the law of tort, and revenue law. We also need much more to be written on labour law than exists at present. (My book - The Evolving Legal Profes­siolJ in the Commonwealth, written in 1978 - was intended in part to fill such a vacuum, insofar as the evolution, status and ethics of the profession are concerned).

CONCLUSION

, It is clear from the data which I have tried to present • t9 you that Professor Twining's aspirational model for the

production of legal literature in small jurisdictions is for the most part still only an aspiration in the Commonwealth Caribbean. In niost territories, new revised editions of laws

CARIBBEAN LAW LIBRARIAN - 48

are badly needed, and those which have been revised during the last 15 years in loose-leaf format, updating has not been regular.

With regard to Law Reports, the only regional series being produced are the West Indian Reports which are not published as frequently as desirable (mainly because they

2[C done in England, and they suffer from the fact that they contain a few cases from the Eastern Caribbean territories). There are no major Commonwealth Caribbean reference or prodedural works; bibliographical information on legal publications is not easily available to the legal profeSSion in the region. The major periodical, The West Indian Law Journal, enjoys a good reputation but no issues have appeared for over a year, and according to reports received, the Journal is also not widely available in the Eastern Caribbean_ As far as texts, commentaries and case­books are concerned, it has been shown that more of these are needed in almost every area of law and the fact is that we have able and experienced lawyers in the area capable of preparing such works with an indigenous flavour.

To improve the situation with regard to primary legal materials Governments should not hesitate to seek external

assistance in terms of computer hardware and software as well as expertise in operating any systems installed so as to

make the task of updating and preparing laws for publica­tion easier. Governments should also be prepared to explore (in consultation with Bar Associations) all methods of publishing, including non-conventional methods, and should also consider the possibility of revising and publish­ing laws in batches so that a reduction may be effected in the cost on the basis of the economies of scale.

As far as secondary legal writing and publishing are concerned, two pre-requisites come to mind. The first is a carefully planned and concentrated effort on the pari of mdividual scholars and legal education institutions in the region to produce comprehensive works relating to the entire Commonwealth Caribbean in all areas of law to lessen our dependence on foreign works, although we must acknowledge our debt to these in the past. The second is the vital factor of avenues for publication and distribution within the region. Here, needless to say, I speak from very special personal experience, having published three books ill eight years.

Few of the large international publishing houses arc willing to publish for the Commonwealth Caribbean because the works involved inevitably have limited inter­national appeal and the local markets are so small that the publications have to be printed in small batches, thus

making them always more costly than producing several thousand volumes,

Happily, a few regional publishers have of late appeared on the scene. The Institute of Social and Econo­

mic Research of the University of the West Indies has published a few legal titles in its Law and Society series during the past decade. Cedar Press, of Barbados, who did the camera-ready productions of my three books, had an

excellent Director in the person of Mrs. Muriel Forde, and

was able to publish soft-cover works most competently. AntHles Publications, a Caribbean publishing company, has also published two works authored by Dr. Alexis during the past three years. In the past few months, yet another publishing company - Caribbean Law Publishers - has been incorporated. It published Delroy Chuck's book UncicT.I'umding Crime (1986). And r am advised that it !lOW stands willing to publish other quality legal manu­scripts. We must give these local publishing houses every encouragement and hope they endure. It must be remem­bered that these publishing houses and any other companies which undertake to publish scholarly legal materials may not always be able to produce works in standard offset, and possibly never in hardbound format. It is more likely that the typeset will be done by Word-Processor and that the final product will be issued in soft-cover. However, pro­vided it is attractive, durable, and the work itself is sound scholarship, provided it is properly marketed, thousands of

copies can be sold in the Commonwealth Caribbean and elsewhere. Remember, a journey of a thousand miles begins with a single step.

My earnest hope is that the 1990's will witness a greater volume of legal writing by and for the Common­wealth Caribbean legal profession (academic and practising) of the kind designed to reduce our dependence on texts and monograplls produced for foreign audiences. This is not to say that some of these texts are not qualitatively good, and that the substantive law which will form the backbone of Commonwealth Caribbean works is likely to be much different from many of the English law books, but clearly our own Will contain references to local situa­tions and local personnel. Moreover, we will have a chance, by the commentaries on the work of the judiciary, to have

a better understanding of the principles which influence their decisions.

It is clear that as far as Professor Twining's aspirational model is concerned, much needs to be done before it can become a reality. We are well aware of the problems to be solved, but all we need are the funds, the will and the sense of direction to make it a reality. Let us therefore urge our people and our Governments to "Give us the tools" and we will finish the job.

NOTES

l. William Twining and Jenny Uglow. Legal Literature in small jurisdictions. London: Commonwealth Secretariat, 1981, pp. 1-6.

2. Ibid., pp. 2-3.

3. The territories are Barbados (1975), Belize (1985) Bermuda (1972), Guyana (1973), Jamaica (1975) and Trinidad and Tobago (1981).

4. Information supplied by Mrs. Velma Newton, Ac­quisitions Librarian, Faculty of Law Library.

5. The latest volumes of the Jamaica Law Reports, the Guyana Law Reports and the Trinidad and Tobago

Reports respectively, are vol. 15, 1977, 1969 annual volume, and vol. 20,1970-79, Part 1.

6. See Velma Newton "An historical perspective of law reporting in the English speaking Caribbean ... 7 International Journal of Law Libraries, No.1, March 1979, pp. 1-21.

7. Paul Levy. A Pracliliuller's Guide to Fees and Costs in the Supreme Court, Jamaica. --- Kingston, 1974, 53p.

8. See Note 6 above.

9. Information obtained from the Faculty of Law Library, U.W.I., Cave Hill, Barbados.

Association News

The Second Annual General Meeting of CARALL was held on the beautiful island of St. Vincent from July 22 ~ 25, 1986, at the Jaycees Headquarters in Kingstown.

Representatives from Barbados, Dominica, Guyana, Ja­maica, Trinidad and Tobago participated in our delibera­tions, and we were joined by representatives from the local S1. Vincent and Grenadines Bar Association as well as by two guests from the United States of America.

The Association is most appreciative for all the help given by Mrs. Lorna Small and Mrs. Pearl Herbert, Libra­rians attached to the St. Vincent Public Libraries for making the local arrangements which contributed to a most successful and enjoyable meeting.

Our opening ceremony was addressed by the Hon. Attorney General Mr. Emery Robertson and by Mr. Othneil Sylvester, President of the SVG Bar Association. Both gentlemen also hosted us individually at functions arranged in our honour. Guest speaker at the opening ceremony was Sir. Fred Phillips who spoke on West Indian Legal Writing and Publishing.

CAR1BBEAN LAW LIBRARIAN ~49

PROFILE MRS. LAWRENCE

The President of the Caribbean Association of Law Libraries (CARALL) is Mrs. Yvonne Lawrence. Elected at the last Annual meeting held in St. Vincent in July 1986, Mrs. Lawrence is a Jamaican and has becn the Librarian of the Supreme Court of Jamaica since 1969.

Mrs. Lawrence received her professional training at the Polytechnic of North London, England, becoming an Asso· ciate of the Library Association (ALA.) in 1969, and Loughborough University of Technology which she attend­ed as a 1980 Commonwealth scholar and from which she graduated in 1982 with the degree of Master of Library Studies (M.L.S.). But her education continues and she has pursued various courses in areas as diverse as Communica­tion for Librarians and Computer Appreciation. She has also travelled widely to conferences and seminars on library studies, .attending a workshop for law librarians in Lagos, Nigeria in 1975, the Annual Meeting of the American Asso­ciatian of Law Librarians in 1975 and touring law libraries in England in 1976. More recently, Mrs. Lawrence has been integrally involved in the development of Law Librarians as a special interest group and was present at a seminal meet· ing of Caribbean Law Librarians in Barbados in 1982. She was a member of the Working Party which drafted the Constitution for the proposed Caribbean Associatioll of Law Libraries (CARALL) in 1983, and was prcsent at the inaugural meeting of CARALL in Trinidad and Tobago in 1984, when she was elected Vice-President of the Associa· tion. She attended subsequent annual meetings in Trinidad and Tobago in 1985 and St. Vincent in 1986.

At home in Jamaica, Mrs. Lawrence's professional activities have not been limited to her work at the Supreme Court Library ~ in itself a demanding assignment. She was

a member of the Executive Committee of the Jamaica "Library Association (JLA) in 1972·1980 and 1984, and

served as Treasurer from 1972·1977. In 1979 she was elected 2nd Vice·President of that Association and was Chairman of the Special Libraries and Information Section

eA RIBBEAN LAW LIBRARIAN - SO

of the Association in 1984. She was also a member of the Executive Committee of the Association of Caribbean, University, Research and Institutional Libraries (ACURIL) when she held the position of Treasurer in 1977.

She currently sits on the Membership and Publications Committee of the Bar Council, the Editorial Committee of the Caribbean Law Librarian, and she is one of a group of Consultant Law Librarians who are providing technical assistance under the Law Library Development component of the UWI/USAID Administration of Justice Project for the Caribbean.

The foregoing record is impressive, but it is not complete. In addition to all of that, Mrs. Lawrence has presented and published several articles on matters of concern to professional law librarians and her M.L.S. thesis at Loughborough on "A legal information network for attorneys-at·law in Jamaica" reflects the level of scholarship and thought that she has sustained in her professional life. In addition to her membership in CARALL and the JLA, she holds professional membership in the British Library Association, the Information Technology Group (U.K.) and the Reference Special and Information Section (U.K.), and is the institutional representative, through membership, in the AALL, the BIALL and the IALL. Her outstanding contribution to Iibrariallship in Jamaica was recognized in 1981 by the award to her of all Institute of Jamaica Centenary medal.

There is much more to tell of Yvonne Lawrence: any profile such as this must necessarily be highly selective. She is an indefatigable worker and a warm and generous friend. We wish her every success as President of CARALL and, for the future, long life and happiness.

PRESIDENT'S MESSAGE

I am indeed honoured to have been elected Presidcnt of the Caribbean Association of Law Libraries (CARALL) for 1986/87 and I assume the Presidency with a degree of enthusiasm and a sense of optimism for the future of law

librarianship in the Caribbean.

Two decades ago, although they were among the earliest speciaJ libraries in the region, precious little was kncwn of the existence of our Jaw libraries, outside of the profession which they served. The same can hardly be said ; oday as CARALL, through its Annual Meetings, has already beguJl to bridge thaI communication gap between libraries which, hitherto, operated in "splendid isolation". It has also initiated its first co-operative scheme for the dissemination of judgements throughout the Region.

The paucity of law library personnel, and financial recources to establish and maintain legal information services in several Caribbean territories is an issue which must soon be addressed as failure to correct the situation will in term affect the quality of existing information services and hence the efficient administration of justice.

The recent allocation of funds by the United States

Agency for International Development (US AID) however, to upgrade the administration of justice in a number of Caribbean territories, augurs well for regional law libraries. CARALL welcomes this development as, among other things, it will provide opportunity for the training of para-professionals to manage the legal information units

under supervision. This call be viewed as the initial step towards the provision of human resources which must, of necessity, increase in level and content when the library is fully developed.

I wish to take this opportunity to thank the Outgoing Executive Committee for its hard work in moulding the Association during its first two years; colleagues overseas, publishers and members of the legal profession for their good wishes and words of encouragement for the Associa­tion, and finally to my colleagues of the Caribbean for offering me the challenge of leadership in this small but

NEGLIGENCE AND CONFIDENTIALITY IN BANKING*

By C. Dennis Morrision Attorney-at-Law, Jamaica, and Associate Tutor at the Norman Manley Law School

lntroduction

The relationship between banker and customer is a contractual one. A bank has a duty under its contract with its customer to exercise reasonable care and skill in carry­ing out its part with regard to operations within its contract with its customer. A well known statement of the position is that of Ungoed - Thomas J. in the case of Selangor United Rubber Estates Ltd. v_ Cradock (No.3) 1

" .... a bank has a duty under its contract with its customer to t:xercise reasonable care and skill in carry­ing out its part with regard to operations within its contract with its customer. The standard of that reasonable care and skill is an objective standard ap­plicable to banken_ Whether or not it l12.s been attained in any particular case has to be decided in the light of all the relevant facts, which can vary almost infinitely. The relevant considerations include the prima facie assumption that men are honest, the practice of bankers, the very limited time in which banks have to decide what course to take with regard to a cheque presented for payment without risking liability for delay, and the extent to which an operation is unusual or out of the .)[dinary course of business."

Given the breadth of the general principle, it is ob­viously impossible to delineate categorically the areas in which the question of negligence in banking may arise: circumstances vary infmitely and new developments in the field invariably reflect the application of the old and well known general principle to new facts or unusual variants

Paper delivered a t the Legal Seminar on "Recent Developments in the Law Relation to Banking"

October 2 and 3, 1985 The Royal Bank Jamaica Limited

of old facts. What follows, therefore, is - against the back­drop of the general principle - a look at some of the areas, in which bankers have been held to be liable for negligence, that impinge most directly on everyday banking practice.

Duties of Collecting and Paying Bankers

For collection of bills, cheques and other instru­ments for its customer's account is one of the contractuai duties undertaken by a bank. A bank in the discharge of such a duty must act with reasonable care. 2 Of equal, or perhaps greater, importance is the corresponding rule that a paying bank owes a duty to exercise reasonable care and skill in transacting its customer's banking business, includ­ing the making of such inquiries as may, in particular cir­

cumstances, be appropriate and practical. This rule is of particular significance in a case where a customer's cheque is presented to a banker for payment and where the signa­ture or signatures conform with the customer's mandate to the bank, but where the circumstances of the transaction are unusual and/or outside of the ordinary course of the customer's business. Where the bank has, or a reasonable banker would have, grounds for believing that the author­ised signatories are misusing their authority for the purpose of defrauding their principal or otherwise defeating his true intentions, the obligation to exercise reasonable care and skill extends to making such enquiries as the circumstances indicate and, if necessary, to decline to honour the cheque. This is obviously one of the most precarious aspects of the banker's duties, as he has also, as will be discussed below, to be careful of liability for wrongful dishonour. But the

CARIBBEAN LAW LIBRARIAN - 51

,

principle is well established and was the basis of the well known decisions in Selangor's case and in Karak Rubber Company Ltd. v. Burden (No.- 2). J In the former case Ungoed - Thomas J. put the matter in this way: 4

"As between the company and the bank, the mand­ate, in my view, operates within the norlllal contractual relationships of customer and banker and dot's not exclude them. These relationships include the normal obligation of using reasonable skill and care; and that duty, on the part of the bank, of using reasonable skill and care; is a duty owed to the other party to the contract, the customer, who in this case is the plaintiff company, and not the authorised signatories. More­over, it extends over the whole range of banking business within that contract. So the duty of skill and care applies to interpreting, ascertaining, and acting in accordance with the instructions of a customer; and that must mean his really intended instructions as contrasted with the instructions to act on signatures misused to defeat the customer's real intentiollS. Of course, omnia praesumuntur rite esse acta, and a bank should normally act in accordance with the mandate -­but not if reasonable skill and care indicate a different course.

These conclusions are inconsistent with the accept. ance of the submissio~s for the defendants that (i) a paying bank is concerned exclusively with the mandate from its customer and has no duty of care, or alternat­ively (ii) that bank is only liable otherwise (a) if it actually knew that a cheque is drawn by a mandated agent in breach of his authority, or alternatively (b) if from facts in the actual knowledge of the bank; the irrcstible inference is that the cheque is so drawn." In the latter case, Brightman J _ stated the position even

more directly: 5

... _ it is not, and never could reasonably be, asserted that a paying bank with certain knowledge that the authorised signatories are misapplying the company's funds may nonetheless rely on their signatures. If that is axiomatic, and it was concerned so to be in the case before me, it seems utterly irrational to suppose that a bank has an ahsolute unqualified duty to pay and no duty to enquire despite a deep suspicion, approaching but falling short of a certainty, that the funds are being misapplied. Once a bank disclaims the untenable posi­tion of being in all cases an au toma tic cash dispenser, whatever the circumstances, there is no rational stop­ping - place short of a contractual duty to exercise such care and skill as would be exercised by a reason­able banker in similar circumstances. And that care and skill must rationally include, in appropriate cir­cumstances, a duty to inquire before paying."

/ In the Karak case, it was therefore held that Barclays Bank was liahle to a customer, whose cheque it had paid without enquiring, in unusual circumstances, outside of

.. ' the· Jrdinary course of banking business' and involVing a very large sum of money. The quantum of damages was

r.ADlDUt:'Al'UT-AU!TTRRAPTAN_..c::?

held to be the loss actually suffered by the customer as a result of the cheque being paid and debited to its account.

A Banker's Duties As Adviser

In Woods v. Martins Bank Ltd. ,6 Salmon J. (as he then was) held that where a banker gives fmancial advice to a customer, he is under a duty to give that advice with reasonable care and skill, measured against the ordinary care and skill which the ordinary banker in his position might reasonably be expected to possess. The landmark decision in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd,7 ex tended this duty so as to oblige all persons in the position of advisers, whether they be bankers or otherwise, to exercise reasonable care and skill in giving such advice in circumstances where they assume liability for the advice and know that it is to be acted upon. For bankers, the decision is of considerable significance because it enjoins them to care and skill quite apart from their contractual obligation to a customcr. In the Hedley Byrne case the plaintiffs were advertising agents who had been approached by one of their customers, Easipower, to be allowed a line of credit. The plaintiffs, acting as prudent businessmen, in turn sought from their bankers reference about Easi­power. The plaintiffs' bankers then sought and obtained from the defendants, who were Easipower's bankers, credit references on their customer. They were provided on two occasions with favourable references which they passed on to the plaintiffs. The defendants did not know who the plaintiffs were but, in any event, had marked their com­munications to the plaintiffs "Confidential. For your private use". They, however, were aware that the inquiry was made in connection with an advertising contract and that the information would be passed on to a customer.

In reliance on these references, the plaintiffs extended a line of credit to Easipower and when Easipower went into liquidation, they suffered substantial loss. The action was instituted to recover this loss, based upon the defendant's alleged negligence in giving favourable references about Easipower.

The House of Lords held that the plaintiffs were not entitled to succeed agaInst the defendants, but primarily because their credit references had been given "without responsibility" _. in other words, they had expressly dis­claimed liability However, the House of Lords made it clear that the cause of action was well founded and that a plaintiff could succeed in an appropriate case. Lord Reid formulated the principle in this way: 8

"A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on, would, I think, have three courses open to him - He could keep silent or decline to give the information or advice sought: or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection or inquiry which a careful answer. would require: or he could simply answer witho~.~'such qualifICation. If he chooses to adopt the last course he must, I think,

be held to have accepted some responsibility for his answer being given carefully, or to have accepted a relationship with the inquirer which requires him to exercise such care as the circumstances require."

Lord Morris pu t it similarly: 9

"My lords, I consider that it fdlows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of

contract, to apply that skill for the assistance of an· other person who relies on such skill, a duty of care will arise. The fact that the service is to be given by means of, or by the instrumentality of, words can make no difference. Furthermore if, in a sphere in which a person is so placed that others could reason­ably rely on his judgment or his skill or on his ability to make careful inquiry, a person takes it on himself to give information or advice to, or allows his informa­tion or advice to be passed on to, another person who, as he knows or should know, will place reliance on it, then a duty of care will arise."

An interesting case in which a bank was held liable on the Hedley Byrne principle is Box P. Midland Bank Ud. 10

In that case it was held that a bank manager was not ob­liged to predict the outcome of his application to his re­gional head office for a loan to a customer, but if, as in this case, he did predict the outcome, he was under a duty to take reasonable care, if he knew that his prediction would be relied on. On the facts it was held that the bank manager failed to exercise reasonable care - the care to be expected of an ordinary competent bank manager _. in that he gave the customer the impression, as he intended, that the grant­ing of the facility would be a mere formality, whereas there was never the slightest prospect of the facility being made available, as the bank manager ought to have known. The

customer relied on the bank manager's negligent prediction and the bank was held liable to the customer on the Hedley Byrne principle.

As has been observed, a banker giving negligent advice may choose to qualify that advice by stating that it is "without responsibility" and in Hedley Byrne itself the plaintiffs failed only because the advice had been covered hy slich a qualification. TIle only comment that one would wish to make on this has already been well made by a learned commentator, whose words the writer gratefully adopts: 11

"From a practical viewpoint, it seems unlikely that professional investment advisers would wish to avail themselves of such a form of protection. The com­petition in the market place together with the halo surrounding professionalism and expertise are only two factors which would prevent professional advisers from giving advice on the one hand and assuming no responsibility for it with the other. Indeed, it would seem that probably and at least initially in respect of certain profeSSions such a safeguard should prob­ably be legislated out of existence. It must be remem-

bered that the profeSSional giving advice already has certain safeguards built in to the principle as establi­shed by Hedley Byrne. Foremost of these is the fact that he is not going to be liable merely because his advice was bad but his liability arises only where he fails to exercise reasonable care in the giving of his advice. Tllf duty of care imposed on the giver of ad­vice 'is nut a duty to take every possible care; stiil less is it a duty to be right'."

The Bank's Duty to take Fiduciary Care

A person is said to stand in a fiduciary relation to another when he has rights and powers which he is bound to exercise for the benefit of that other person. Hence he is not allowed to derive any profit or advantage from the relation between them, except with the knowledge and and consent of the other person. Such is the relation be­tween trustee and cestui que trust, attorney and client, principal and agent. These are established categories of relation, but the categories are not closed and the broad principle is thaI generally, wherever from the position of two persons, one of them reposes confidence or trust in the other, their relationship is a fiduciary one.l2 The rela­tionship of banker and customer is not ordinarily a fiduci­ary one in which there will be presumption of undue in­fluence on the part of the banker over the customer. How­ever, the relationship of banker and customer may except­ionally become one in which the banker obtains a dominat­ing influence and in these cases especial care is required to ensure that the customer's interests are fully protected,

if necessary by independent advice. Three recent cases illustrate the interplay of principle and special facts. The first is Lloyds Bank Ltd. )'. Bundy,13 where the facts were as follows:-

"The defendant was an elderly farmer who was not well versed in business affairs. His home was a farm­house which had belonged to his family for several generations. It was his only asset. The defendant and his son were both customers at the same branch of the plaintiff bank. The son formed a plant-hire company which also banked at the same branch. The company ran into difficulties and in September, 1966 the De­fendant, who had great faith in his son, guaranteed the company's overdraft for £1 ,500 and charged his house to the bank to secure that sum. The company ran into further difficulties and the assistant bank manager suggested that the defendant should sign a further guarantee for £5,000 and execute a further charge for £6,000. The defendant's solicitor advised him that, since the house was worth only £10,000 that was the most that he should commit to his son's busi­ness. Accordingly, in May, 1 %9, the defendant execut­ed the further guarantee and charge. Thereafter the company's affairs went from bad to worse. A new assistant manager joined the bank and told the son that the situation could not continue. The son sug­gested that the company's difficulties were only tem­porary and that the defendant would provide further

CARIBBEAN LAW LIBRARIAN - 53

money. Accordingly, in December, 1969, the assistant manager, with the son, went to see the defendant at his home. The assistant l1\anager took with him a form of guarantee and a form of charge, already filled in with the defendant's name, for signature. At a meeting at which the son and his wife were present, the assist­nanage, told the defendant tha t the bank would only continue to support the company if the defendant increased the guarantee and charge up to a figure of £11,000. The assistant manager told the defendant what the company's position was, but did not explain the company's accounts very fully. The son said that the company's difficulties were due to a number of bad debts, although the assistant manager was not satisfied that that was the case. The assistant manager did not appreciate that there was a conflict of interest but he realised that the defendant relied on him implicitly to advise him about the transaction 'as bank manager' He knew that the defendant had no assets other than the house. The defendant said that he was willing to back his son. The assistant manager thereupon pro· duced the doculT,ents and the defendant signed them. In May 1970, a receiving order was made against the son and the bank stopped overdraft facilities for the company. The bank proceeded to enforce the charge and guarantee against the defendant. They entered into an agreement to sell the defendant's house and brought an action for possession against the defendant." The English Court of Appeal held that the relationship

between the bank and the defendant was one of tmst and confidence. In consequence of that relationship the :iefend· ant, in coming to a decision on the proposed transaction, was liable to be influenced by the bank's proposals. Since the bank was seeking to obtain a henefit from the defend­ant, there was a conflict of interest between them. In those circumstances the confidential relationship imposed on the bank a duty of fiduciary care, that is, a duty to ensure that the defendant formed an independent and in­formed judgment on the proposed transaction before committing himself. In the circumstances it was the duty of the bank to advise the defendant to obtain independent, informed advice whether there was any prospect of the company's affairs becoming viable. Since the bank had failed to do that, they were in breach of their fiduciary duty to the defendant and could not therefore be allowed to retain the benefit of the transaction. Accordingly the guarantee and charge would be set aside and the action for possession dismissed. The judgment of Sir Eric Sachs con­cluded in this way: 14

'There remains to mention that counsel for the bank, whilst conceding that the relevant special relationship could arise as between banker and customer, urged in somewhat doom-laden terms that a decision taken against the bank on the facts of this particular case would seriously affect banking practice. With all respect to that submission, it seems necessary to point out that nothing in this judgment affects the duties of a bank "in the normal case where it obtains a guaran-

CARIBBEAN-LAW LIBRARIAN - S4

tee, and in accordance with standard practice explains to the person about to sign its legal effect and the sums involved. When, however, a bank, as in the present case, goes further and advises on more general matters germane to the wisdom of the transaction, that indi­cates that it may-not necessarily must-be crossing the line into the area of confidentiality so that the court may then have to examine all the facts including, of course, the history leading up to the transaction, to ascertain whether or not that line has, as here, been crossed. It would indeed be rather odd if a bank which vis-a-vis a customer attained a special relationship in some ways akin to that of a "man of affairs" -some­thing which can be a matter of pride and enhance its local reputation -- should not, where a conflict of in­terest has arisen as between itself and the person ad­vised be under the resulting duty now under discuss­ion. Once, as was inevitably conceded, it is possible for a bank to be under that duty, it is, as in the present case, simply a question for "meticulous examination" of the particular facts to see whether that duty has arisen. On the special facts here it did arise and it has been broken."

Bundy's case was applied in Canada in Royal Bank of Canada v. Hinds 15 in a case where a widow, shortly after her husband's death, was asked by a bank to sign docu­ments that amounted to her taking over her husband's debt to the bank. She signed without appreciating either the nature and effect of the documents or her own legal position. It was held that the documents were not enforce­abie and that in such a situation the bank had an obligation to ensure that its customer was fully informed of the hazardous course she was taking and ought to satisfy itself that she was independently advised.

These cases may be compared with National West-minister Bank v. Morgan,16 where the facts were as follows:

"The husband, who was in difficulties with his busi­ness, was unable to meet the repayments due under a mortgage secured over the home which he owned jointly with his wife. As a result the then mortgagee commenced proceedings to take possession of the home, and to avert that possibility the husband made refinancing arrangements with a bank, the refinancing being secured by a legal charge in favour of the bank. The bank was made aware of the urgency of the matter and the bank manager called at the home to get the wife to execute the charge. In the course of the bank manager's brief visit to the home the wife made it clear that she had little faith in her husband's business ventures and that she did not want the legal charge to cover his business liabilities. The bank manager assured her in good faith but incorrectly that the charge only secured the amount advanced to refinance the mortgage. In fact the charge was by its terms un­limited in extent and therefore could extend to all the husband's liabilities to the bank, although it was the bank's intention to treat it as limited to secure the

amount required to refinance the mortgage. The wife

did not receive independent legal advice before signing

the charge. The bank subsequently obtained an order

for possession of the home after the husband and wife

fell into arrears with payments. Soon afterwards the

husband died without owing any indebtedness to the

bank for business advances. The wife appealed against

the lllder ior possesswn, l0l11endlllg that she had

signed the charge because of undue influence from the

bank and that therefore it should be set aside. The

bank contended that the defence of undue influence

could only be raised when a defendant had entered into a transaction which was manifestly disadvant­ageous to him and, since the husband had died without business debts owing to the bank, the wife was not

manifestly disadvantaged but in fact had benefited

under the transaction because it had averted the pro­ceedings for possession by the prior mortgagee."

On these facts the House of Lords held that a t rans­

action could not be set aside on the grounds of undue in­fluence unless it was shown that the transaction was to the

manifest disadvantage of the person subjected tu the

dominating influence. The basis of the principle was not

public policy but the prevention of victill1isation of one

party by another, and therefore presumption of undue

influence would nllt necessarily arise merely from the

fact that a confidential rclationship existed between the parties, and although undue influence was not restricted to gifts but could ex tend to commercial transactions, for

example, between " banker and a customer, it was not based simply on inequality of bargaining powel. On the

facts, the bank manager had not crossed the line between

on the one hand explaining an llIdinary hanking transact ion

in thc course of a normal business relationship between

banker and customer and on the other hand entering intll

a relationship in which he had a dominating influence, and,

furthermore, the transaction was not unfair to the wife.

The banker had therefore not been under a duty to ensure

that she had independent advice. Accordingly, the appeal

was allowed and the order for possession sough t by the

bank granted.

All of these cases need to be read in the light of their

special facts ,md Murgall's case certainly makes it cleal

that it canIlot be thal evcry time a bank manage1 )luts a

document before a customer for signature, a fiduciary rcla­

tion comes into existence. Nevertheless, it is prudent for a banker to exercise a degree of caution before volunterring advice as to the legal effect of a contract to which the banker and the customer are to be parties. Whenever he proffers advice, the banker enters an invidious arena, in which his interest as the bank's employee and his duty to his customers are likely to conflict and the presumption of

un flue nee undue to arise. In all cases of doubt therefore,

there can be no harm in inviting the customer to seek in­

dependent advice.

Liability for Wrongful Dishonour

Wrongful dishonour occurs when a bank has refused

or failed to pay a cheque despite the fact that the customer

has sufficient funds in his account to meet it. It constitutes

a breach of contract which gives to the customer a cause

of action for damages for the breach as well as for libel.

Where the customer is not a trader (or, perhaps, a profes­sional man), he will be entitled to recover only nominal

damages in the absence of proof of special damage. How­ever) a tIJc1L'l Inay Jscovcr s'Jbstantial g,,-'flc'ral d(lolages without proof of special damage. 17

The Banker's Duty of Secrecy or Confidence

In the leading case of TOllrnier v. National Provincial Bank,I8 the plaintiff was a customer of the defendant bank.

His account became overdrawn and he agreed to payoff

the overd raft by weekly instalmen ts, giving his address as that of a firm whose employment he was about to enter.

He failed to pay the instalments and the bank manager telephoned his employers to ask for his private address. In the course of the conversation the manager informed the empluyers that the plaintiff's account was overdrawn, that he had failed to keep his promise to reduce the overdraft

and that the Illanager suspected him of being a gambler,

as checques drawn by him had been paid to bookmakers. As a result, the plaintiff lost his job and he sued the bank

for damages. The court held that the bank was liable, as

it had failed ill its duty to the plaintiff to treat his account and affairs as confidential. The duty is implicit in the rcla­

tionship of banker and customer in respect of "all the

transactions that go through the account, and to the ···f .. t f tl t" 19 secuotlCs, I any, given 111 respec u 1e accoun .

The general pi inciplc is well established and is ob­

viously of the greatest importance. However, as with all

such principles, it is subject to important qualifications,

wllicli may be classified under fOllr main heads:-

(a) where disclosure is under compulsiun of law;

(b) where there is a duty to the public to disclose;

(c) where the interest of the bank require disclosure;

and (d) where the disclosure is made with the express or

implied consent of the customer.

(a) Compulsion of Law

If it is the duty of a bank, whether at common law

or under statute, to disclose confidential information in defined circumstances, then the bank must do so and any express contract to the contrary is illegal and void. The major provisions are statutory and are as follows:-

(i) The Evidence Act

Section 37 - "on the application of any party to a

legal proceeding a court or judge may order that such party be at liberty to inspect and take copies of any entries in

a bankcr's book for any of the purposes of such proceed­

ings. An order under this section may be made either with

or withou t summoning the bank or other party, and shall

CARIBBEAN LAW LIBRARIAN - 55

be served on the bank three clear days before the same is to be obeyed, unless the court or judges otherwise directs."

The expression "banker's book" includes ledgers, day books, cash books, account books and other records used in the ordinary business of the bank, whether those records are in \\'rit1cn forn1 OJ are kept on microfilrn, lJ1<1gnctis tape or any other form of mechanical or electronic data retrieval mechanism. 20 In R. v. Dadson,21 however, it was held that letters con"tained in a bank correspondence file are not banker's books within the terms of the Act. In considering whether to make an order under the Act, the authorities establish that a court should have regard to whether the public interest outweighs the private interest in keeping a customer's account confidential and it is onl~ when the former prevails that an order should be made.

2

(ii) The Income Tax Act

Under Section 50(5) (a) of the Act, where a person ob­jects to an assessment made by the Commissioner of In­come Tax, the Commissioner may by notice summon any person who he thinks is able to give evidence respecting the assessment to attend before him and he may examine such person on oath. Refusal or neglect to respect to this summons or refusal to answer lawful questions constitutes an offence unuer the Act. Under Section 72A like powers arc given to the Comniissioner for the purpose of verifying the correctness of any return, statement, declaration or particulars delivered under the Act, or for making an assess­ment. Section 7211.(2) gives power to any person authorised by the Commissioner to en ter upon any premises between the hours of 9:00 a.m. and 9:00 p.m. and inspect any books, documents or other material that appears to be relevant.

These are ObVIously wIde and sweeplI1g prOVIsions. In Clinch v. JRe, 23 It was held that the Court would intervene if, under an analogous provision of the English Income and Corporation Taxes Act, 1970, the powers of the re­venue authorities were being invoked in a manner that went substantially beyond that which was required for the purpose of enabling them to decide the quantum of taxes payable. III such a case it was held that the court could invalidate a notice on the ground that it was oppressive or burdensome. It is thought that the Jamaican provisions would be read subject to a similar qualification.

(iii) The Companies Act

Section 160 (I) of the Act provides for the production of Company records and documents by persons or bodies (including banks) in whose custody they are to inspectors when properly required to do so. Section 160 (2) provides that an inspector may examine on oath the offices and agents of a company in relation to its business. Section 160(5) provides that for the purposes of the section, the expression 'agents' in relation to a company includes the bankers of the company.

Under Section 246 the court may at any time after the appoin tmen t of a provisional liquidator or the making

CARIBBEAN LAW LIBRARIAN ~ 56

of a winding-up order, summon before it any officer of the company or person who is known or suspected to have

in his possession any property of the company or is sup­posed to be indebted to the company, or any person whom the court deems capable of giving information concerning the promotion, formation, trade, dealings, affairs or pro­perty of the cOillpany. The section is clearly wide enough to cover bankers.

SeGtion 369 of the Act provides that if on the applica­tion of the Director of Public Prosecutions, reasonable cause is shown to suggest the commission of an offence by an officer of a company in connection with the manage­ment of the affairs of the company, an order may be made authorising any person named therein to inspect books and papers of bankers so far as they relate to the company's affairs for the purpose of investigating and obtaining evid­ence of the offence.

(iv) The Judicature (Civil Procedure Code) Act

Section 284 provides for the discovery of documents in the possession of another party. In Bankers Trust CU. P.

Shapira,24 it was held that the court's developing powers to order discovery of information at the eariliest stages of an action to assist a plaintiff to trace and recover property of which he claims to have been wrongfully or fraudulently deprived may be exercised to require a bank to disclose material normally subject to the obligation of confidential­ity, though such disclosure should be strictly confined to the purposes of the action. Similarly under section 393 ct seq., a subpoena duces tecum may be issued directed to a bank requiring production of a document and the obliga­tion of confidentiality does not provide a ground for re­fusing to produce it. However, the court has an overriding jurisdiction ;" respect of the bona fides of the request and a subpoena duces tecum may be set aside where it appears that the request is irrelevant, oppressive or an abuse of the process of the court. 25

(b) Public Interest

In Tuurnier's case, Bankes L.J., referred under this head to cases "where a higher duty than the private duty is involved, as where danger .to the state or public du),Y may supersede the duty of tite agent to his principal.,,2 Most books cite as an example a wartime situation during which

the customer's dealings indicated trading with the enemy.

(c) Required by the Interests of the Bank

A simple example of the third qualification is where a bank issues a writ claiming payment of an overdraft stating on the face of the document the amount of the overdraft. The interests of the bank clearly demand dis­closure in this case.

(d) Disclosure by Consent

As to express consent nothing needs to be said, save that it is desirable that the customer's request to the bank to give information about his affairs to a third party should be specific and in writing. The customer's consent to dis-

closure may be implied where, for instance, the customer gives his banker's name in response to a request for a banker's reference. However, though banks in practice often give references on their customers to other bankers without seeking the customer's specific consent on each occasion, a banker who did so in the face of his customer's expr~ss instructions not to wouid l)c in hreach of his duty. 27

Conclusion

The foregoing purports to be no more than an intro­duction to the present law relating to negligence and con­fidentiality in banking. To the extent that circumstances vary infinitely and, certainly in relation to negligence, the categories are not closed, the law is still developing. This is particularly so in an era of increased technological sophistication as the law - in general and in banking -grapples with the problem of dragging itself into the twenty first century. The legal principles all assume that banking is an honourable and in its own way learned profession; that trust, confidence and skill arc all integral to its smooth Cllnduct. To a very large extent the principles coincide with the perception of the public, a situation which is in some respects unusual and which represents a triumph for the banking profession. The challenge of the future of banking law therefore may well be how to accommodate the de­mands of change and modernisation while preserving that public perception.

REFERENCES

I. (1968) 2 All E.R. 1073, 118.

2. Schi(}ler )'. Westminster Bank Ud. (J 970) 3 All E.R. 177.

3. (1972) 1 W.L.R. G02.

4. (1968)2 AllE.R. 1073,1119.

5. (1972) 1 W.L.R. 602, 629.

6. (1958) 3 All E.R. 166.

7. (1963) 2 All E.R. 575.

8. Ibid at p. 583.

9. Ibid at p_ 594.

10. (1979) 2 Lloyds Rep. 391.

11. Keith Sobion, "Negligent Misstatement - Directions on the Development of a Tort"; paper presented toa seminar on "Recent Developments in the Law of Banking" sponsored by The Royal Bank of Trinidad & Tobago Ltd. on October 12 and 13,1984.

12. Jowitt's Dictionary of English Law, 2nd ed., Vol. 1 p.788.

13. (1974) 3 All E.R. 757.

14. Ibid at p. 772.

15.·n~1*i~~.~:R, (3d.) 428.

16. (1985) 1 All E.R_ 821.

17. See Butterworths Encyclopaedia of Banking Law, para. 151.

18_ (1924) 1 K.B. 461.

19. Ibid per Atkin LJ. at p. 485.

20. Baker v. Wilsun (1980) 2 All UZ 0].

21. (1983) 77 CL App. Rep. 91.

22. R. v. Grussman (1981) 73 Cr. App. 302, 307 per Lord

Denning M .R.

23. (1973) 1 All E.R. 977.

24. (1980) 3 All E.R. 353.

25. Seniur v. Huldswurth (1975) 2 All E.R. 1009.

26. (1924) 1 K.B. 461,473.

27. See "Questions on Banking Practice" 11th ed.

para. 693.

THE NEW EXECUTIVE COMMITTEE 1986/87

The Meeting elected the following officers:

President Mrs. Yvonne Lawrence Librarian, Supreme Court, Jamaica.

Vice-President - Ms. Paula Jordan University of Guyana Library

Secretary Ms. Jeanne Slowe Norman Manley Law School

Ass!. Secretary and Public Relations Officer - Ms. Cheryl Ramsubeik

Court of Appeal Library. Trinidad and Tobago.

Treasurer Mrs. Joyce Douglas Revenue Court, Trinidad and Tobago.

ML Leslie Fenty, Librarian, Norman Manley Law School, Jamaica was nominated for the post of Editor.

Resigna tion of Secretary: Miss Jeanne Slowe resigned her position to take up a scholarship at the Pratt Institute in New York. She is working on her M.L.S. degree.

Executive Committee has appointed Ms. Janice Modeste of the Law Commission Library of Trinidad and Tobago to fill the post of Secretary for the year.

Congratulations to Mrs. Velma Newton for being elected to the Executive Board of the International AssoCiation of

!.. Lav." Libraries. .: '<1"-' .', _:'c· . '

CARIBBEAN LAW LIBRARIAN - 57

JUDGMENTS OF THE EASTERN CARIBBEAN COURTS

RECEIVED BY THE FACULTY OF LAW LIBRARY

FOR 1985

------------ ------

ANGUILLA

Subject and Title

Real Property - Land -Title - Appeal against grant of title to land by Adjudication Officer to responden t -- Only part of dispu ted land m ell tiolled in appcllan t 's deed -Appeal tberefore ail owed in part

Suit No.

Gumbs v_ Gumbs Civil Suit #27, J976

Real Property -- Land --­Appeal against grant of title by Adjudication Of-ficer to responden t -- Claim by appellant bosed on adverse possession - N a evidence to support claim

Gumbs v_ Lake et at Civil Suit 4i17, J 975

I. Jurisdiction and Pro­cedure - Apreal -- Arpeal vs. grant of title to part of est" te tu Commissioner for the Crown by High Court judge - Land Adjudication Ordinance, 1974, s.21(2) -Considerations which apply in making record of proceed-ings bcfore the Adjudication Officer available on appeal to the High Court

2. Redl Pruperly Land -- Title -Appeal against grant of title to part of estate to Commissioner for the Crown by High Court judge - Considerations which apply ill making record of pro­ceedings before the Adjudication Officer available on appeal to the High Court

Richardson v. H.M.'s Commissioner

Date of Decision

1985-05-28

1985-06-07

for the Crown Civil Appea' #4, 1980 1985-04-15

ANTIGUA

Subject and Title Suit No. Date of Decision

Family Law - Custody -

:ARIBBEAN'LAW LIBRARIAN - 58

Application by mother for issue of a Writ of Habeas Corpus for putative father of child and his sister to deliver child to mother -Not in best interest of child to remove her from present environment

Barnes et al Y. Nathaniel

Contempt of Court -Newspaper article -

Civil Appeal #2,1984 1985-05-27

Whether publication calculated to prejudice the fair trial of appellant by influencing prospective jurors, delib­erately misrepresenting the law and the facts, or by im­plying that the charges were an abuse of the process of the law

Hector v. Director of Pu blic Prosecutions Civil Appeal #8, 1983 1985-03-04

Jurisdiction and Procedure -- Claim for wrongful dis­missal filed in High Court -­Prior to that the matter was referred to the Industrial Court - Whether same parties ought to be allowed to raise the same issues before differ­ing courts of similar of con­current jurisdiction simul­taneously - There must be an election of remedy or court

Jarvis v. Carib Enterprises Ltd. Civil Appeal #6, 1983 1985-07-27

Labour Law - Strike -Whether strike prohibited by Industrial Court Act, 1976, No.4

Morgan et al v. Andrew E. Holmes Ltd. et al Civil Appeal #lA, 1984 1985-03-03

Insurance - Fire insurance -­Property insured in joint names of couple before marital break­down - Policy subsequently transferred to another com­pany in appellant's name only - Fire compensation for loss of buildings paid to ap-

pellant - Appellant did not

disclose joint ownership of

property - Order fur half COlTl­

pensation received by appellant

to be paid to defen dan t Williams v. Williams Civil Appeal #5, 1983 1985-05-27

BRITISH VIRGIN ISLANDS

I. Statute -- Interpretation -

British Virgin islands Fisheries Ordinance. 1979, no. 18 -- Fisheries Ordin-oncc (/lmO/dlllent) Ordin­al/ce, J 9H 2 -- Whether or­

dinance and amendment

rendered invalid, null and

void by terms of reciprocal

treaty between U.K. and U.S. which was applicable to British

colonies Treaty dol'S not

override tcrritorial1cgislatioll

2. Treaty·- Interpretation -

Reciprocal i"ishcrics Agreement

made between governments of U.K.

and Northern Irelalld and U.S.A_,

Art. III Treaty applicable to

British Virgin lslands -- British Virgil/ Islands Fisheries Ordinance. J 979, no. 18 - Fisheries Urdinance (/lmendment) Ordinance, 1982 -

\Vhethn llrdin81lCC and allll'ndn1l'nt rendered null and void by exist­

ence of Trea ty

Acting Chief of Police

v. Bryan \f:tB. API'. #1, 19S4

Public Utilities FlretTicily

Cbim for unp;!id balnnce of

cost of electric powcr su pplkd

to defendants' premises betwl'l'n 1980 and 1983 - Plaintiff's

conduct of submitting bills to

the defendant and accepting pay­

ment for electricity consumed 3S

shown on the bills without in­dicating that there w,,, under­

billing amounting to a \vaivcr of the sum for which 110 hll!s

were submitted No case

submission upheld

B.V.I. Electricity Corp. v.

19P5-0610

Circle Corp. Civil Suit #107,1983 1985-04-03

Tort -- Damages - Fatal

accident - Claim under

Falal A ceidellts A CI,

(Cap. 26) and Callses of /I CtiOIl (Survival) /I ct (Cap. II)

Johnston et al v.

Stewart et al

Tort - Damages-

Civil Suit #104,1981

Libel and slander -- Slander -

Defendant failing to apologise

1985-07-31

until 2 years and 3 months

after apology requested -

To tal disregard for injUry

to feelings of plaintiff

Quantum

Melendesv. McKelly Civil Suit #113,1983 1985-10-31

Rl'<.ll P1P!'~!l:' j,~I!HJ

Register -- Rcctiflca tion of Land Register .- Applica-

tion based on allegation that

current registration was ob­

tained by fraud, mistake or both -- Plaintiff claiming that

he is a purchaser for value of

an undivided \I, share of parcel

of land and tha t defend" Ilts arc

proprietors in common of the

other undivided \12 share -- Plain­

tiff waited 14 years before bring­

ing action - Delay not fatal

10 claiIll because of special cir­

cumstances -- Rectificatiun or­

dered to make pl~dntiff proprietor

1n common of ] /3 shan~ Skelton v. Skelton et al Civil Suit #38,1981

1\eal Property -- Lanellord

,lnd tenant - Rcpossission of

premises by landlord on

ground that tenant failed to pay rent - Lease -- Terms -

Landlord in breach of covenant

to repair -- Tenant claiming

for cost of n:puirs and painting Tenant ordered to pay ar­

rears of ren t -- Landl0rd ordered

to repay tenant for repairs

\Valters v. Lc\'ol1s Civil Suit #6, J 983

Real Property - Landlord

and tenant - Repossession of

premises by landlord on

ground that tenant failed to

pay rent -- Lease - Real

Property - Land Register -­

Rectification of Land Re­

gister - Application based

on claim that defcndant know­

ingly and frauduicntly cldim~'d/ aLcepted title to en tire pro­

perty and failed to produce

deed in favour of plaintiff's

husband - Rectification

ordered

Zieglar et al v. MacShanc Civil Suit #70, 1980

DOMINICA

Insurance - Two policies

for loss or damage by hurri­

cane, riot, etc. - Claim by

insured based on loss or damage by hurricane and su b-

J 985-04-03

1985-0 I "-'

1985-01-18

CARIBBEAN LAW LIBRARIAN _ 59

.---- - ---- ------- --

sequent rioting - Arbitration award - Insurers refused to pay - Insurers requesting declaration that policies w;re void on ground that insured fraudulently claimed 100 per cent loss or damage in rcbtilJn ~u ct.::-dain items, fraudulently exaggerated their claim in relation to damage or loss to ./heir hotel and failed to supply or produce documents requested by insurers in breach of a condi­tion of said insurance policies -Finding that there was no evid­ence of fraud in the insured suf­ficient to satisfy the required legal standard of proof -

finding that insured had pro­vided the best particulars which they were able to furnish with the limited facili­tics a t their disposal - Insurers found in breach of contract due to failure to pay to the insured their losses within a reasonable time - Order for Spt~cific performance by the insurers of the agreement under the insurance policies including the arbitration award - Order for damages for breach of contract by Hle insurers

Ennia General Insurance Co. Ltd. v. Astaphan & Co. (1970) Ltd.

Suits Nos. 167, 1981 and 222,1982

Jurisdiction and Pro­cedure - Judgrncnt -Jud~ment entcred against defendants in defau It of filing their defence - A pplica tion by defendants to set aside judgment - No affidavit of merits or other sufficient material on which court could exercise ~! discretion in f2vUur of till' defendants

Industrial Enterprises Ltd. v. Ennia General Insurance

Co. Ltd. Suit #J 89,1981

1. Constitutional Law -Appeal by respondent by way of case slated against acquittal of appellants -West Indies Associated States Supreme Court (Dominica) Act, 1969-10, s. 37(2) - Commonwealth of Dominica Constitution Order, 1978, s. 8(5)­Whether appeal null and

r' A PH""" ANT AW J.JRRARIAN - 60

[UNDATED J

1985-03-15

void as offending s. 8(5)

2. Criminal Law - Appeal vs. conviction - Conspiracy to overthrow lawfully con­stitu ted government - Evid­ence - Handwriting - Whether documents should be admitted in cvidL'nce for purpuse of comparison with handwriting in relevant documents ad­mitted in evidence

John et al v. Director of Pu bHc Prosecu tions

Constitutional Law - Civil rights -- Right to a fair

Privy Council Appeal #SO, 1983

trial - Alleged adverse pre-trial pu blicity - Finding

that the statements and publications were made with the sole intention of defeating the first plaintiff in elections and not to prejudice the rair trial of any of the plaintiffs -­Order for change of venue and postponement of

trial denied John ct al v. Director of Public Prosecutions et al Civil Suit #257, 1985

1. Family Law - Applica­

tion by respondent/ husband for share in matrimonial home -~ Finding that respondent reduced labour cost for building home by contri­buting his lubom - Re­spondent's interest com­pu ted at 1/8 value of home ~- Order that respon­

dent's interest to remain with petitioner/wife who must payoff mortgage and be responsible for mainten­ance of home so that pro­perty vests in her absolutely

2. Family Law - Husband 2nd wife - Application by petitioner/wife for such maintenance, periodic or lump sum payment as unit thought fit - Finding that respondent/husband had undertaken obligations which reduced his capacity to main­tain the petitioner - This only a subordinate factor -Respondent ordered to pay petitioner $150 per month until she remarried or died

Toussaint v. Toussaint et al Civil Suit #262, 1982

GRENADA

1985-02-27

1985-10-10

1985-03-28

1. Constitutional Law -Court - High Court of Grenada -- Court established by People's Law No.4 passed under P.R.G. r~gime­Whether unlawful government could establish a valid court -E\'idl'nC",' th:!t P.R.C. h;:d effective celHIc)l of country

and support of the people _. P.R.G. held competent to pass laws - Court held legally established

2. Necessity·- lIigh Court of Grenada - Court established by P.R.G. People's Law No.4

- P.R.G. de facto sov(:Ici[,:l1,

eVen though unlawful - P.R.G. laws held valid under princi­ple of necessity or implied

mandate Mitchell et al v. Director (If I'u bhe

Prosecutions ct;:il (3 Judgments) Civil Appeal f,-'?, J 984

1. Extradition - Appeal vs. extradition order .- Whether extradition trcat~'/ 1n exist­ence between Grenada and

the U.S.A. -- Order·in· Council incorporating treaty made by U.K. into the municipal law of Grenada not repealed until after Grenada becamc independent -Treaty therefore applicable to

Grenada

2. Extradition - Evidence-­Applicant committed acts in U.S. which, if they had been committed in Grenada, would be offences -- Extradi­

tion order upheld

3. Habeas Corpus - Appeal against ex tradition ordcr -Evidcnce that cxtradition treaty in existence between U.S.A. and Grcnada -- Ap-

plica tion refll sed I,c JIumphrey (Chester) Civil Suit #~26, 1 Yts4

MONTSERRAT

1985-05-1 (]

1985-03-2 j

Real Propcrty --Land and hereditaments - Title -­Evidence that'title to land transferred to appellant by testamentary disposition -Plaintiff entitled to injunc­tion against respondent

Weekes v. Wade Civil Appeal #2,1982 1985-01-23

ST. KITTS NEVIS

Subject and Title

Criminal Law - Appeal vs. conviction - Murder -Appeal based on alleged error of trial judge in failing to direct the iurv on ('vidence of

uHstab1l' mental con­

dition of the appellant -Finding that directions given by thc judge on the issue of insanity were proper and ade­quate in light of the available evidence

Suit No. Date of Decision

Ihle v. R. Crim. App. #1, 1984 1985-02-21

Pension - Application for order that appellant is entitlcd to be paid gratuity and pension after 25 years' sc]vice in a pensionable office in the public service of the state --Pensions A Ci, Cap. 145

Pensions (Amcndmenl)

A cl, J 975- C;oJ'rmor (Fl1lolllml'llts alld Pensions) Act, 1968, No. J 1 ~ Whether a ppellan t rctired from the public service after he had scrved 25 years - Facts that appellant sought permission to withdraw from one "office" in order to aSSllrrlC another held not to be termination of a part of or a break in his public service -- Appellant held entitled to pension at his optiun, under Pensions A ct, Cap. 195 as amended by Pcnsions (11I1u'ndmclJl)

A cl, 1975 or Governor

t'rno!uments and Pensions A cr, 1968, No.2 J

Inniss v. A ttorncy General

Criminal Law - Appeal vs. conviction -- Murder -Appeal based on allegation that frial jlld~e erred in t::xt2Tcising his discretion

in refusing to call a witness

Civil Appeal #2,1984 1985-10-07

to give evidence on weapons -Finding that weapons in question had no relevance to the case

Lewis v. R. Crim. App. #4, 1985 1985-10-11

Crim inal La IV - Appeal vs. conviction - Murder -Appellant's account of how deceased received the injury which caused his death totally rejected - Strong case of circlllllstancial evid­ence against the appellant -Appeal dismissed

CARIBBEAN LAW LIBRARIAN - 61

Martin v. R. Crim. App. #3,1985 1985-10-11

Real Property - Land -

Appeal against order by the Attorney General declaring

appellant's title to land forfeited to the Crown -A liell rand Holding RegulatilJ'l

L{]\'.', C<lp. 102, s. 2 i ,an;]

registered in name of appel-

lant on behalf of her son .. Evidence that appellant not a citizen of the state of St. Kitts-Nevis and therefore in­capable of holding land or mort­gage on land within the state by virtue of s. 3 .- Land regis­

tered in name of appellant on

behalf of her son, a citizen of the state -- Appeal must

fail because appellant was

incapable of holding legal interest in the land and tliere­

fore could have no benefici"l jntC'rest to confer on son

Ramsaran v. Attorney GeneTal for

S 1. Christopher

and Nevis Civil Appeal #5, 19P.S 1985-03-10

Tort - Libel and slander -Newspaper article - Allega­

tion by plaintiff that words were published falsely and maliciously of him in the way of his office and in rclation to his conduct, and as a result he had been seriously injured in his character credit and rcputa­tion and in the way of his office, and had becIl hrought

into public scandal, odium and contempt - Defence of fair comment - Finding -of court that libel established -

Punitive and exemplary

damages awarded Simmonds v. France et at Civil Suit #34, 1984 1985-05-07

ST. LUCIA

Subject and Title Suit No.

Real Property - Land -

Appeal against High Court judgment declaring respondents

co-owners of parcel of land and injunction restraining plaintiffs from entering or using the land - Appellants' Code, Article 21 03A - Appel­lants failed to discharge onus of proving sole and undistri-bu ted possession for thirty years - Appeal dismissed

CARIBBEAN LAW LIBRARIAN -62

Date of Decision

Charles et al v. Ambrose et al

Real Property -~ Land -

Contract for sale of land -

Plaintiff making down-

Civil Appeal #2, 1984 1985-05-06

payment to second defendant on (lccount of Jlur('has~~ D~icl'

Plaintiff entering iIlto pC1ssns­

ion - First defendant uprooting

part of plaintifi"s crop - Evid­

ence that second defendant had

sold same land to first defen­

dant - West I"dies Associated States Supreme Court (St. Lucia) Act, No. 17 of 1979 - Power of court to grant whatever remedies

it saw fit to prevent multiplicity of actions - Order for specific

performance of plaintiff's contract with second defendant

Clarke v. Daniel and

Vickers Civil Suit #268, 1981 1985-03-20

1. Constitll tional Law Citizenship Citizenship of St. Lucia Act, 1979 .. SI. Lucia (Application by Commonwealth Citizens) Rcg,datiol1s, 1979, s. 3 -Couple declared prohibited immigrants .- No evidence that they applied for registra­tion as citi'lCns of S1. Lucia

2. Deportation - Whether deporta­tion of couple from S1. Lucia constitutional -- Immigration Ordillal1ce (A melldmcllt) A cl,

1983, No. 15 3. Natural Justice -

Deportation ordcr -

immigration Ordillance, Cap. 76, s. 4(3)(b), (5) -

Governor-Gencral-in-

Council required to

declare any person a prohibited immigrant after

considering information and advice - Whether Governor­General-in-Council function­ing under Cap. 76, s. 4(3)(b)

.::s a quasi-judici31 body or as an executive hody Finding that Governor­General-in-Council acting solely under executive powers

and not as a court - No presumption that compliance with principles of natural

justice required

England et al v. Attorney General Civil Appeal #4, 1983 1985-02-04

1. Injunction - Application for injunction restraining

defendants from entering

or using access road on petitioner's property - No

evidence that right of wa)'

was established on behalf of the public by prescription

for 30 years -- Injunction granted

2. Real Property ~ Land ~ Right of way ~ Article 491 of Civil Code oISI. j,/I('W ~~o c\idcnCl' tn,ll ribht of way was established on behalf of the pu blic by prescription for 30 years

Francis v. Butcher et al Civil Suits Nos. 343, 1977 and 92, 1978 1985-06·12

ST. VINCENT AND THE GRENADINES

Subject and Titlc

Real Property -- Land ~ Adverse possession -

Suit No.

Claim for possession referable to a lawful title and therefore

Date of Decision

possession not adverse Charles v. Wood Civil ApI,eal #5, 1982 1985·03-29

Family Law ~ Unmarried couple - Application by appellant for declaration of entitlement to Y, interest in dwelling house ~ Finding thot appellant made no contribution to family expcnses- No finding of an implied common intention on the part of the parties that the appellant was to have a beneficial interest in the property

Cupid v. Thomas Crim. App. #5, 1984 1985-03-25

Real Prop crt)' Land-Conveyance ~ Land registered solely in husband's name ~ Sale of land to bona fide purchaser for value ~ Wife in occupation a t time of sale ~ Whether wife has beneficial or proprietary interest with notice of which the purchaser bought the property ~ Wife did not make husband a party to action so that he could answer her claim ~ Any right claimed by wife must be against husband and cannot affect the transaction in which ownership of the property passed to the appellant

Shearman v. Davis et al Civil Appeal #J 0, 1984 1985-03-25

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1945-1985

CARIBBEAN LAW LIBRARIAN - 63

Official Gazette

Ordinances --

Statutory Rules and Orders _

Acts

Official Gazette -

Statutory Instruments -

DUPLICATE WEST INDIAN LEGISLATION HELD BY THE FACULTY OF LAW

LIBRARY AT 1986-07-20

-

----------._-----

ANGUILLA

1983 . Nos. 5-7

1984 . No. 3

19 B 5 . Nos. 2, 3 , 9

1983 Nos. 2, 3

1983 : Nos 7 - 1 1 1984 : Nos. 10 , 1 2 , 1 3

1 9 B 5 . No 14

ANTIGUA AND BARBUDA

1978

198O

1 981 .

1982 . 1983 .

1984:

1985 .

1986 .

1984 .

1985:

1986 :

1982 :

1983

Nos 1 - 1 6 Nos 5 - 1 ° , 1 1 (2 C)

Nos 1 - 4 ( 2 c of eo. c h) , 5-9 ( 4 c of eo. ch) ,

10 ( 3 c) , 1 1 -- 1 9 \ 2 c. <) f e 3 ch) , 20, 2 1 , 22 ( 2 c)

Hos. 1-27 Nos. 10 (3 c) , 1 1 (2 c. ) I 1 "t (3 c) , 13 ( 2 c) ,

14 ( 2 c)

Nos 1-3, 4-5 (2c of eo. ch) , 6 (B c :. I

7 ( B c) , 8 (8 c) , 9-10, 1 1 - 1 4 ( 2 c r. f

each) , 15- 2 4

Nos. 1-20, 22 (2 c)

No s. 1 - 1 3

Nos 4 (2c), 5-7, 9, 10 (2c), 11-15,

16 (2c), 17, 18 (3c), 19-26, 27 (2c),

31 (2c), 32-37, 38 (2e), 39-42 (Be of

each), 43, 44 (8c), 45 (8c), 46-5'1, 58 (3c), 60-63

Nos. 1-3,5-27,28 (2c), 29-31 (2e of

each), 32-55, 56-57 (2c of each),

58-62 Nos. 1-4,5 (2c), 6-21, 23-26

Nos. 9-15,16-17,18 (2c), 19-20, 24-27,

Nos.

32-33 (2e of each), 3<l (2c), 37 (2c), 38

34 J

(2 c)

Statutory Rules and Orders

Statutory Rules and Orders

Acts -

Official Gazette

Statutory Instruments -

ANTIGUA AND BARBUDA (Cant. )

1984:

1985.

1986.

1975 : 1978 : 1979 . 19 B 0 : 1981:

1982:

1980: 1981 1983 . 1985 :

1980 . 1981 : 1982:

1983: 1984: 1985: 1986:

1980: 1982:

1983:

Nos. 1,2-4 (2c of each), 7 (2c), 8-11 (2c of 14, 15 (2c), 16, 17

5, 6 each) , ( 2 c ) ,

( 3 c) ,

12 (3 c) ,

19 (2c),

20-23,24-25 (Bc of each), 26, 27 (8e), 2B, 31-36, 39-46

Nos. 1-4, 5-6 (2c of each), 8-15, 17-19, 20 (2c), 21-32, 33-48, 49 (2c), 50-52

Nos. 1-4, 7, 10-11, 14-19

No. 18 Nos. 1 - 69 No. 36 Nos. 33-35 Nos. 1 ( 2 c) , 2, 3-5 ( 2 c of each) , 6-9,

10- 1 4 (2 c of each) , 15 -16 ( 3 c of each) , 17 (2 c) , 18 , 19 ( 3 c) , 20 (2 c) , 21 - 2 2 ( 4 c) , 23 ( 3 c) , 24 (4 c) , 25 (2 c) , 26, 27-30 (2c of each) , 31-32, 33 ( 2 c) , 34, 35-45 (2 c) , 46-49, 50 ( 2 c ) , 54

Nos. 3-7

BAHAMAS

No. 8 No. 12 Nos. 1 , 2 ( 2 c) , 3-8, Nos. 1 - 6

No. 10 No. 12 Nos . ., 6, 8, 9 , 11-16, 18 , 21 , 28-31, v,

33, 43, 44, 46-49, 51 Nos. 32 , 33, 35, 37 (2 c) , 38, 44, 47 Nos. 3, 19 , 23, 26-28, 30, 31 Nos. 9, 1 1 , 13 , 29, 35, 37, 39 Nos. 3-5

Nos. 8, 9 Nos. 4, 6-20, 22-28, 30 , 32-33, 37-53,

56-85 Nos. 35, 39, 40-42, 49, 51-53, 59 ( 2 c) , 64

CARIBBEAN LAW LIBRARIAN _ 6S

Statutory Instruments - 1984:

1985 .

1986

Acts - 1983 1984: 1985. 1986 .

BiIls- 1986 .

Official Gazette -- 1984 . 1985

1986 .

'House of Assembly Debates -

CARIBBEAN LAW LIBRARIAN - 66

BAHAMAS (Cont

Nos. 19 , 25-27, 29, 30, 32-34 Nos. 8-22, 32, 37, 39 t>i(..J :s 3-5

BARBADOS

Nos. (2 c) , 2, 19 , 47 ( 2 c) Nos. 1 - 4 5 , 46-49 (Zc of each) Nos. 1-22, 26-33 (3c of each) , 34 Nos. 1 -7 , 9 - 1 5 (2c of each)

Interpretation (Amndt.) Act (2c) Supreme Court of Judicature (Amndt

Act (2c) Companies (Amndt Act (2c) Factories (Amndt Act (2c) Motor Omnibus Terminals Act (2c) Customs (Amndt Act (2c) Exempt Insurance (Amndt ) Act (2c)

( 2c)

National Assistance (Amndt Act (2c) Appropriation Act (2c)

Nos. 1 1 5 I 1 1 7 Nos. 4-6, 8-1'1, 15 - 2 3 (2 c of each) J 25,

26-'12 ( 2 c o ( each) , 43, 44-47 ( 2 c of ea ch) , 48 (3 c) I 49-66 ( 2 c of ea c.h > I

67, 68-79 (2 c of each) , 80, 81 , 82 ( 2 c) , 83-85 (2 c of ea ch) , 86 (3 c) , 87 ( 2 c) , 88 ( 3 c) , 89-90 ( 2 c of ea ch) , 91-100 (4 c of each) , 101-107 (2 c of each) , 108 (3 c) , 109-112 (2 c of each)

Nos. 1 - 1 5 ( 2 c of each) , 16 ( '1 c) , 17-40 (2 c of ea ch) , 41 - 4 2

1 s t Session. 1971-76 1..1...Z.!!. . 1 s t Session. 1981-86 1982 .

Sept 28; 1983. Jan. 1 1 , 18

Feb. 8, 22i 2nd Session. Nov. 15 , 22,

Jan. 24, 31 ,

March 1, 1981-86 29; Dec.

Feb 7,

8, 14

1983 . 13 , 28i

6, 14 ,

Jan. . ~ 1 "

July 20, ( 2 c) , 2 S i

Oct.17i 20i 1984.

March 6, 13 ,

April 3, 17 ; May 8, 15 , 22i June 5 {Zc;'

Sep t . 4 ; Oct 16 ; Nov. 6, 27; Dec. 4;

House of Assembly

Debates -

Regulations .-

Senate Debates -

Statutory Instruments -

BARBADOS (Cont.

.L2.Jl.2. Jan. 8, 15,22,29 (2c);

1985:

1983 .

1984.

1985.

1986 :

Feb. 5 (2c), 12 (2c), 26 (2c); March 5 (2c), 12 (2c), 13 (2c), 18 (2(');

[ T rib ute tot h e H 0 n. J. 11 . G 11. A d a IT! 5 (2 c ) ) ,

April 16 (2c), 23 (2c), May 7, 14; June 4 (2e), 11 (2c), 18 (2c), 25 (2e);

July 9 (2c), 16 (2c); Sept. 24; Oct. 1 (2e), 15 (2e), 25 (2e); Nov. 5 (2e);

Dec. 3 (2e), 10 (2c); 1986: Jan. 14 (2c),

21 (2c); Feb. 4 (2c)

Central Bank of Barbados (Pensions) (Amendment No.1) Regulations (2c)

1st Session. 1981-86 - ~. Feb. 9, 23 ; 11a r c h 2, 9 2nd Session. 1981-86 - ~: Oct. 17; Dec:. 7, 14, 1984 Feb. 8, 15, 29, March 14,26, l'tay 2, 2~; June 20, July 25, Sept 12, Oct 31, 1985. Jan. 23, Feb. 20 (2c); March 18,

[Tribute to the Hon. J.i1.G.M. Adams (2e)]; April 24 (2c); June 26 (2e),

July 10 (2el, 17 (2c); Oct 23 (2c)

Nov. 13, Dec. 18; 1986: Jan. 22

Nos. 6, 8 - 11 , 12- 1 4 (2e of each) , 15, 174

Nos. 1 - 4 , 5 (2 c) , 6 - 2 4, 26-92, 93 (3 c) ,

94, 95 ( 3 c) , 146-194, 195-197 (2c of each) , 198 ( 3 c)

Nos. 5-8, 11-74, 82-129, 130 ( 3 c) , 131-148 , 149 ( 3 c) , 150-156, 157-160 (2c of each) , 161 , 162 ( 4 c) , 163 , 164-174 (3c of each) , 175 (5 c) , 176 (4 c) ,

177 ( 3 c) , 178 (4 c) , 179-219 Nos. 1-5 ( 2 c) , 7-54 (2 c of each) , 55-57,

58-72 ( 2 c)

CARIBBEAN LAW LIBRARIAN - 67

Acts

Gazette -

Ordinances --

Statutory Instruments -

CARIBBEAN LAW LIBRARIAN -·68

1981 : 1984:

1985 :

1971 . 1979 : 1980:

1 98 1

1 98 S .

1973:

1974: 1975. 1977: 1979 : 1980 .

1974 : 1975:

1977:

1979:

1980 :

1981

1982: 1983 : 1985:

BELIZE

Nos. 1-5 (2c of each) Nos. 7-12 Nos. 18-32

BELIZE (C 0 r, l .

No. Nos Nos.

Nos.

No.

No. No. Nos. No. Nos. No.

Nos. Nos.

2 1 ( 2 c)

50, 51 2, 9, 30

1 - 5, 6

22-35, 55-58

5 1

14

1 2 (2c) ,

1-5 (2c

15

(4c), 7-12,

38, 40, 111,

3 - 1 6 , 17,

of each)

14-20, 21 51 (2 c) ,

20-26

(4 c) ,

52-53,

1-9, 30-33, 37-38, 40-41, 58 10-11, 12-13 (2c of each), 14-1S,

17, 19-20 (2c of each), 22-27 (2c of

each), 28-32, 33-34 (2c of each), 35-39, 40-41 (2c of each), 42,

<13 (2c), 44-49, 50-51 (2c of each), S2-69

Hos 1-16 (2c of each), 17-20,21 (2c), 22-44, 45-S4 (2c of each), 55-56, 59-62, 63 (2c), 64-65, 66 (2c), 67, 68-73 (2c of each), 74-75

Nos. 8, 17, 18, 19,22-24,25 (2c), 30-40, 41-<12 (2c of each), 45-48 (2c of ea.ch), 53-55, 56 (2c), 59-74

No 1-2, 9, 26 No. 1-3 (2c of each), 4-7, 8 (2c), 9-10,

11-12 (2c of each), 13-19, 20 (2c),

21-31 (4c of each), 32-37, 38 (2c), 39, 40 (3c), 41-52,53 (3c), 54-59, 60-64 (2c of each), 65-66, 67-70 (2c of each), 71-84, 85-89 (2c of each), 90,91-92 (2c of each), 93-99, 100 (2c), 101-107

No s. 1 - 90, 9 1 (2 c ), 92 (2 c ) No. 4 (2 c) Nos. 49-55, 101, 102 (4c), 103-104,

lOS (2c)

C:aribbean Legal ~liscellanea: A Bibliography

ADVERTISING ~ LAWYERS

LEVY, Michael D. ~ When is a spade an agricultural im· plement?: SOllle thoughts on advertising in the legal profession. Young Attorney, 1986. 38-42.

BANKS AND BANKlNG·- CONFIDENTIALITY

MORRISON, C. Dennis ~ Negligence and confidentiality in banking. A paper presented at the legal seminar, "Recent Developments in the Law Relating to Bank· ing," held on October 2·3. 19Wi. in Kingston, J a· maiC:J.24p.

BARBADOS ~ LAW--INDEXES

Consolidated index of Statutes and Subsidiary legislation to 1st January, 198(,. Compiled. ,hv Sir Clifford H:Jlllmetl]. Faculty of Law Library, U.W.I., 19116. 122p.

BELIZE ~ LAW - INDEXES

Consolidated index of Statutes and Subsidiary legislation to 1st January, 191\6. C()lllpiled ., by Sir Clifford Hammett]. Faculty ()f Law Library, U.W.I., 19116 (Ap.

CHEQUES .- FORGERY _ .. JAMAICA

SA UNDERS, Gracicla An cxa;nination ()r tile law relating to forged clJeqlles. 3 Caribbean Law Uhra·

rian. March 1'0186. IS-22.

COMPUTERS

LUCKY, Anthony -- Computer law: recent develop· ments. 3 Caribbean Law Librarian. March 1986.7-15.

CONSTITUTIONAL LAW·· COMMONWEALTH CARIBBEAN

SAMlJDA, Cluistopher Johll Public's welfare v. my rights. Youl1gAltomcy 1986. 32-34.

CONTRACT .. EXEMPTION CLAUSES

SYKES, Brian The rule of construction: different things to different COllrts. Young Attorney 1986. 15·16.

COPYRIGHT ~ TRINIDAD & TOBAGO

ALLEYNE.FORTE, Learie. -- The Copyright Act, 1985. Obiter, [a publication of the students of the Hugh Wooding Law School, Trinidad] 1986. 10-12.

COURTS _. COMMONWEALTH CARIBBEAN

HOLLIMAN, Steven E. The Privy Council·inconsistent with independence. Young Attorney 1986. 51·53.

EVIDENCE (LAW) .. JAMAICA

MORRISON, C. DCllnis.- Reform of tlie law of evid· ence. YoungAttorney 1986. 7-12.

FORGERY .. JAMAICA

SAUNDERS, Graciela An examination of the law relating to forged cheques. 3 Caribbe(!1) /,(!W !,ibra·

riall. March In6. 15-22.

GRENADA

QUIGLEY, John ... Parachutes at dawn: issues of use of

force and status of internees in the United States -Cuban hostilities on Grenada, 1983. 17 Ul1ir.'ersity of Miami illter-Americol1 Law Review. Winter 1986. 199-248.

GRENADA INTERVENTION, OCT. 1983

LEWIS, Syhil F ... Documents on the invasion of Grenada, October 1983, Compiled by Sybil F. Lewis and Dale T. Mathews. Rio Piedras, P.R., University of Puerto Rico. Institute of Caribbean Studies, 1984. xi,139p.

GRENADA .. POLITICS AND GOVERNMENT

EMMANUEL, Patrick A. -- Political change and public opinion in Grenada, 1979-1984, by Patrick Emmanuel, farley Brathwaite [and] Eudine Barriteau. Cave Hill. Barbados: U.W.I. Institute of Social and Economic Rcsl'arcll (Eastern Caribbean). 1986. (Occasional paper, no. 19) xii. 173p.

INCOME TAX .. BARBADOS

Barbados Income Tax Act with regulations and tax treaties: a consolidation to 1985. Prepared by R.S. Kirby & Co., a member firm of Price Waterhouse, Chartered Accountants. Bridgetown, R.S. Kirby & Co., 1985. 298p.

INCOME TAX ~ JAMAICA

WILLIAMS, Randolph L. ~ The taxation of income in Jamaica (Working Paper No. 2 on the Taxation of Income in Jamaica) Kingston: University of the West Indies, 1986. 77p.

CARIBBEAN LAW LIBRARIAN - 69

INVESTMENTS - ST. LUCIA

ZAGARIS, Bruce - A Legal guide to foreign investment in St. Lucia, J 985, International Business and Trade Law Reporter. Vol. 1, No.4, Sept. 1985. 31-35.

JAMAICA - LAW - INDEXES

(Oll;)olidatcc; il:lll:x of st:Jtules and suh"idi:!lY kbi~ldfi0n to 1st Janu:llY, 19C:6. Compiled by [Sir Clifford Hammett]. Faculty of Law Library, UW.I., 1986. 161p.

LABOUR LAW - JAMAICA

DEACON, Lilieth C. -- Is there a right to strike? Young Attorney 1986. 21-22,27.

LANDLORD AND TENANT

SAHADAT, Mirza A. -- Tenant's right to remove fix­tures - a progressive development. Obiter (a publica­tion of the Students of the Hugh Wooding Law School, Trinidad) 1986. 33-34.

LAW

NI'TTLEFORD, Rex The law as creative agent. Young AlloTl/cy 1986. 43-45.

LAW AND WEST INDIAN LITERATURE

JOHNSON, Janet -- On trial: images of West Indian literature. YoungAttomey 1986. 23-37.

LA W LIBRARIES

WATKINS, Edwin· The importance of law libraries to lawyers and of the attitude of law librarians to their voeatiol!. 3 Caribbean !,a\V Ubruriall. March 198(). 2~(}.

LAW REVISION - COMMONWEALTH CARIBBEAN

HAMMETT, Sir Clifford - Law revision in the Carib­beall. 3 Caribbean La\V Librarian. March 1986.23-27.

LEGAL LITERATURE - BIBLIOGRAPHY

NFWTON, Velma .- Commonwealth Caribbean legal literature: a bibliography, 1971-1985. 2nd cd. Cave

!Jill, Barbados: Tht' Campus Research ~und Commit·

tee, U.W.1. 1986.

LIQUIDATION - JAMAICA DOWDING, Carol .- Receiverships and liquidations. A

paper presented at the Legal Banking Seminar held on October 2-3,1985, in Kingston Jamaica. 24p.

MONTSERRAT - LAW - INDEXES

Consolidated index of statutes and Subsidiary legisla­tion to 1st January, 1986. Compiled [by Sir Clifford Hammett], Faculty of Law Library, U.W.I., 1986. 78p.

OFFSHORE BANKING - BARBADOS

CARIBBEAN LAW LIBRARIAN - 70

BARBADOS. CENTRAL BANK. Offshore business in Barbados. (Prepared by) the Central Bank of Barba­dos. Rev. cd. Bridgetown. Central Bank, 1986. 35p.

ORGANISATION OF EASTERN CARIBBEAN STATtS (OECS)

,\1ENO~'. 1'.1. Tire Organisation of FastcnJ C,ribbean State, an important nrilcstolle in sub-regional in­tegration. 17 University of Miami inter-American Law Review. Winter 1986. 297-311.

PRACTICE AND PROCEDURE

RAMSA Y, Geoffrey - Court-room guide: Resident Magistrates Courts (Criminal Division). Kingston, Jamaica, 1986. 81p.

PROPERTY - TRINIDAD AND TOBAGO

KING, Oscar - A look at the Land Tenants (Security of Tenure) Act, 1981. Obiter, (a publication of the Students of Hugh Wooding Law School, Trinidad) 198(). 36-37.

RECEIVERS -- JAMAICA

DOWDli\G, Carol- Receiverships and liquidations. A paper presented al the Legal Banking Seminar held on October 2-3. 1985, in Kingston Jamaica. 24p.

REVENUE - JAMAICA

WILLIAMS, Randolph L -- The taxation of income in J <lmaica. (Working Paper No. 2 on the Taxation of Income in Jamaica) Kingston: University of the West Indres, 1986. np.

ST. LUCIA- FOREIGN INVESTMENT

ZAGARIS, Bruce -- A legal guide t II foreign investment in S1. Lucia. 1985. international Business and Trade Law Reporter. Vol. I, NO.4. Sept. 1985. 31-35.

ST. LUCIA - LAW-· INDEXES

Consolidated index of statutes and subsidiary legislation to 1st January, 19C:6. Compiled ... [by Sir Clifford Hammett] at the Faclllty of Law I.iorary, UW.I., 1986. 114p.

ST. VINCENT AND THE GRENADINES - LAW­INDEXES

Consolidated index of statutes and subsidiary legislation to 1 st January, 1986. Compiled ... [by Sir Clifford Hammett] in co-operation with the Ministry of Legal Affairs, Kingston, St. Vincent. Cave Hill, Barbados: U.W.I. Faculty of Law Library, 1986. I03p.

SALES - JAMAICA

JAMES, Joan - Recovery, termination and insurance in some contracts of hire-purchase. Young Attorney, 1986. 29-30,34.

I I

I I i I

SENTENCING - JAMAICA

CHUCK, Delroy -- The problems of sentencing: a scep­

tical outlook. A paper presented to the Associationof

Resident Magistrates at Hotel Jamaica Jamaica, Run­

away Bay, St. Ann, on Saturday 16th August, 1986. 25p. (4p).

TRtl\'lDAD AND TOBAGO- LAW - INDEXES

Consolidated index of statutes and subsidiary legislation to 1st January, 1986. Compiled. [by Sir Clifford Hammett] at the Faculty of Law Library, U.w.I., 1986. 116p.

TRINIDAD AND TOBAGO. LAWS, STATUTES ETC.

Chronoligical and alphabetical lists of Ordinances and

Acts, 1832-1983. Compiled by the Law Commission. Port-of-Spain, Law Commission, 1985. vii, 223p.

A Policeman's Right To A Hearing

A Commentary On

Public Service Commission v. Eric Douglas

Introduction

The Court of Appeal in Guyana recently gave its deci­

sion in thr ca,e of Public S('rvice CIJI!7Inissi(Jn v. Fric Douglas 1 in II Lic:h the Court held lliat a police sergeant

who was discharged frolll the Guyana Police Force under

section 35(1) of the Policc ACl 2(thc Act) had no right to a

hearing before such discharge. It is important to examine

this decision, because it seems to be a departure from the

established principles of the audi alteram par/em rule as it applies to removal from office for cause, and also because the decision has the potential for the introduction into the

administration of the Force of arbitrary power. It is there­fore the object of this paper to examine the reasons given by the Court for its decision and to determine whether the decision is correct. But before undertaking this task, the

facts of Douglas ought to be given.

Facts of Douglas

The facts of Douglas are not in dispute. He was a ser­

geant of police stationcd at the Importero Police Station,

North West District, in Guyana, whcn he was charged

indictably for the offence of rape. At his trial for this of­

fence, the jury failed to arrive at a verdict and the case was

adjoufIled with directions f()r a new trial R.?fore the ill' ginnl"g of this new trial, the Director of Public Prosecu­

tions, exercising the power conferred upon him by

article 187(1) of the Guyana Constitution 3 entered a nolle prosequi with respect to the charge against Douglas, there­

by resulting in the charge being withdrawn. As he was now

cleared of the charge - the subject matter of his inter­

diction from duty - he reported to the Police Department for the purpose of resuming his duties as a policeman

duties which he had been doing for some thirty years prior

to his interdiction. Instead of allowing him to resume duties, the Commissioner of Police, acting under

section 35(1) of tile Act, discharged Douglas from the Police Force. Sectiun 35(1) sutes as follows

"35(1) The Commissiuner of Police may a\ any time

discharge any subordinate officcr or constable flOm the Force on the ground that, having re­gard to the conditions of the Force, the use­fulness of the subordinate officer or the con­

stable thereto and any other relevant circum­stances, such discharge is desirable in the public interest".

The CommissioIlcr of Police stated in the letter dis­

charging Douglas that the cause or reason for the discharge

was that, 'having regard to the conditions of the Force,

your usefulness thereto and any other relevant circum­stances the discharge was desirable in the public intercst."4

The discharge apparently was grounded OJ! the view that Douglas was JlO longer useful to the Force. 4A

Douglas appealed against the COlllmissioncr's decision to the Police Service Commission; bu t the Commission con­

curred with the decision of the Commissioner. Havii1g failed in another appeal to the then Minister of Home Affairs, Douglas brought an action in the High Court claiming

damages for wrongful discharge frolll the Police Force. His main contention was that the Commissioner of Police acted

unlawfully in that the CunllllissioUCf did not give him an opportunity to be heard before discharging him from the

Force as the Commissioner was bound to do under section 35( 1) of the Act. In other words, the Commissioner

of Police, by not giving Douglas a hearing, exceeded his

jurisprudence under section 35(1), and consequently,

Douglas' purported discharge was ultra vires, null and void.

Decision of the Courts

At the trial of the case in the High Court, George C.1.,

in an erudite judgment, held inter alia that under section

35(1) of the Act, the Commissioner of Police could only

discharge for cause, and, therefore, must conform to the

CARIBBEAN LAW LIBRARIAN -71

principles of natural justice; that is to say, the Commission­

er was legally bound to give Douglas an opportunity to be heard before discharging him.

The State appealed the decision of the High Court to the Court of Appeal. This court, comprising Fung-a-Fatt, J/\., Hi:iprr . .l.A .. mel Krnllilrd, .LA .. hfld lliat the answc, tu tile question whether naturai Juslice applied to thc case depended on a proper interpretation of section 35(1) of 1lJ(~ Act to sce whether thc legislature intended that natural justice should apply. After a cursory examination section 35(1) of the Act, all three of Their Honours held that the power given to the Commissioner under the section was administrative; and although the Commissioner, under the section, could only discharge for cause, still he did not have to givc a hearing prior to such discharge. Thcir Hon­ours held that the intention of Parliament was to give the Commissioner an unfettered "administrative discretion"5 to discharge subordinate officers from the Furcc on the

grounds stated in the section.

Harpcr, J.A., though agreeing that natural justice did

not apply because thc powers of the Commissioner of Police lInder section 35( I) of the Act were administrative,

held ill favour of Sergeant Douglas on the ground that the COlllmissioner should have given reasons to the Court as to why he came to thc conclusion stated in thc letter of discharge to Douglas. In other words, the Comillissioner could not discharge a subordinate officer on thc grounds stated in that latter without giving to the C>)Urt reasons

as to how he arrived at these grounds. Since the Com­missione:' did not give such reasons, and since Douglas' discharge came "quickly after a nolle prosf!qlli was cntcred in the criminal case against him, it was", according to the leamcd judge, "necessary for WIne sort of evidence to be given in the pJcacling to show clearly that the Commissioner exercised his discretion from facts which carne to hand before the discharge, and not because of the manner in which the criminal case against Douglas end (sic)." 6

Examination of the Decision

It is important to bear in mind the decision of the COLlrt of Appeal and its reasons therefor. The first rcason. it may be re,~alJed, is that the COlilmissiuller under the scction can only discharge for cause and once this cause is within the "four corners" of the section, he did not havc to give a hearing prior to the discharge. Fung-a-Fatt, I.A. was clearly of this vicw when he said that he shared "the view that the Commissioner of Police can only discharge for cause, but cannot subscribe to the further reasoning that the officer must be given a prior hearing." 7 There are many cases to the contrary view, which have laid down the principle that removal for cause from an office, not hcld at pleasure, had to be preceded by notice and a hearing. Howcver, before examining these cases, a preliminary point must be made. It is not disputed that the question whether a right to a hearing exists under section 35(1) is a question of statutory interpretation. But in interpreting this section

rIlRn:~ln~AN I A\V T THRARIAN _ 7)

to ascertain whether such a right is intended, the common law with respect to removal for cause from an office not held at pleasure should have been considered for the pur­pose of providing an aid to interpreting the section. It is trite law that knowledge of the common law on any parti­cular subject is an aid to interpreting a statute pertaining

to till' subject. ,1I1d til"L the CUll:t wuuld adopt an intcl· pretation in favour of "maintaining common law rights, unless they are clearly taken away." 8 When the cases at common law dealing with removal for cause from an office not held at pleasure are researched, it is found that whenever the removal is for cause a hearing is required.

The first such case is that of James Bagg9 who was re­moved from his office because of insulting language to his superior. The Court held that such removal "without hear­ing the party removed, is bad." lOIn the well known case of Dr. Bentley who was removed from his office at Cambridge University for misconduct without a hearing, it was held that the "law of nature" rcquired that every man should be heard before being punished. 11 And in another old case following that of Bagg, it was held that where there was to be cause for removal, the person sought to be removed should be heard because "how else could it be known that there was just cause for the remova1.'· 12 In other words,

there must be a hearing, if the removal is for cause. This point came out more forcefully ill a later case, decided almost a century after Bagg, where d vicar of a parisi. had a right, according to certain rules of hi; church, to remove for lawful cause any person who held office of clerk of the parish. A clerk, because of drunkenness and other mis­conduct, was removed from his office without a hearing. The vicar argued at the trial for wrongful dismissal that he, according to the rulcs of the church, had supervision alia control over his infcrior officcrs and that the law invested in him, in order to carry OLlt these fUllctions, the power to bc accuser, witness and judge. Lord D(;nham, C.J. held that the vicar could not lawfully remove thc clcrk for the causes he alleged without holding some form of enquiry, in which

the accused should have had an opportunity to be heard. This was so although the alleged callsc of removal rested on the vicar's "personal observation". 13 Put another way, thc cause of the removal in this case was miscundnct which depended exclusively on the pl'Isonal observation of the vicar and the Court still held that even in such a case the clerk should have been heard prior to removal.

In Fisher l'. Jackson, 14 the plaintiff was a school master

of an endowed school, the rules of which provided that the plaintiff may be removed from his office because of mis­conduct which was considered not in the interest of the school. He was not given an opportunity to be heard prior to his removal. North J., held that by not hearing thc plain­tiff an "elementary principle of justice" had been neglect­ed. "The administration of the school should have told the plaintiff that they were meeting to consider the causes of his removal and should have given him an opportunity to be heard. However right the defendants might have been

in dismissing the plaintiff. .... they were wrong in dis­missing him without a hearing." 15

In Exparte Ramshay, 161egislation empowered the Lord Chancellor to remove a County Court Judge on the ground of inability - a ground that closely resembles the usefulness

ground that was used to discharge Douglas. Lord Campbell }lcld that reIl1'.)Y~,l under ,hi, Jc r)s:atJO:l bel;u L'C in ~h·~·)rd·

anee with the "principle of eternal justice." 1 7Thc principle, arising out of all these cases quoted, is that where there is removal for cause from an office not held at pleasure, that removal has to be preceded by a hearing. Undoubtedly, this common law principle is part of the law of Guyana by virtue of section 7(1) of the Constitution of the Co­operative Repuillic Act 1980 17A and by being accepted by our judges. In our own case of fJyder Ali J!. The Public Service Commission,18 Chancellor Luckhoo agreed with this principle. He said that natural justice would arise by neces­sary implication "in situations where dismissal at pleasure or will has been llIled out and the decision is reached only to remove for cause,,19(emphasis mine).

But perhaps the decision which concretised and ce­mented this principle in the administrative law of Guyana is the landmark decision of Ridge v. lJaidwin 20which teach­es us that "where an occupant of an office was removable only for cause (e.g. inability or misbehaviour) he had an implied right to prior notice and an opportunity to be heard." 21 In Ridge the appellant, who was Chief Constable of the Brighton Burough Police Force, was removed from office without being given an oppurtunity to be heard by

the watch committee of the Council. He had been cllarged criminally, just as Douglas was. He was not convicted of the charges, just as Douglas was not convicted. On acquitting the Chief Constable of the charges, the trial judge made remarks to the effect tilal the appellant had not given the kind of leadership of the Force as he should have given. One day after the acquittal of the Chief Constable, the watch committee met and removed him from office acting under section 191(4) of the Municipal Corporations Act 1882 U.K. This section, it is submitted, is almost identical in meaning to the section under which Douglas was dis­charged. Section 191(4) therefore has to be quoted.

"191(4) The watch committee may at any time sLlspend and may at :.Il1y time dismiss any borough constable whom they think negligent in the dis­charge of his duty, or otherwise unfit for the Force" (emphasis mine).

The word "unfit" that appears in this section means "not suitable." 22 According, therefore, to this section, the watch committee may at any time dismiss a constable who was not suitable for the Force. A person who is not suitable for the Force is unlikely to be useful thereto; so that there is a great similarity between this section and section 35(1) of the Act. It would seem that Douglas was discharged be­cause the Commissioner came to the view that Douglas

was not suitable for, or useful to, the Force. In the Com­missioner's letter of discharge to Douglas, the Commission­er said inter alia that Douglas was being discharged "having regard to .. _ .. your usefulness" to the Force. This letter may be interpreted to mean that the Commissioner, for reasons which are not known, but which may be supposed, discharged Douglas because it was thought that he was, after about 30 years of sl'rvicc, no 10llger lIseful to the

F-orce. This form of legislation in Ridge v. Baldwin is there­fore hardly distinguishable from section 35(1) of the Act, yet the Court of Appeal in Douglas did not even consider Ridge, though it was mentioned briefly by Kennard J.A. The Court should have at least considered Ridge and should have tried to distinguish it.

The conclusion leached in Ridge was that the Chief Constable should have been given a hearing before being removed from office. Lord Reid, after pointing out that the case before him was concerned with the removal of a man for cause, that is to say, removal from an office, not held at pleasure, "w hel e there must be something against the man to warrant his dismissal", 23 held that an officer cannot lawfully be dismissed for cause "without first tell­ing him what is alleged against him and hearing his defence or explanation". 24

Section 35(1) of the Act requires the Commissioner to have certain reasons before he could discharge an officer from the Force. These reasons, as we have seen, are:

(a) the conditions of the Force;

(b) the usefulness of the officer;

and

(c) any other relevant circumstance.

Under tbis section, the Commissioner cannot lawfully consider one reason only; but has to consider the reasons together since they are separated by the conjunction 'and'. For instance, the Commissioner cannot lawfully discharge policemen under the section for the sole reason that condi­tions of the Force require the discharge: he has also to consider the usefulness of the policemen to the Force and other relevant circumstances, if any. The reasons or causes for the discharge, as mentioned in the section, must be re­garded cUlJlulatiwly and not disjunctively. If this interpre­tation be right, then the commissioner was lawfully bound

to consider Douglas' usefulness to the Force before dis­charging him. To arrive at a proper decision as to a person's usefulness for an occupation, it logically follows that one would to take evidence of the person's competence, con­duct, character and so on. How could one take such evidence, and act on it, without hearing the person con­cerned! If this be so, it would be tantamount to saying that the Commissioner could come to a decision that a policeman is, for instance, guilty of misconduct without hearing the policeman. Surely this is not the law. It is to be noted too, that in Ridge as well as in Douglas, neither was told precisely what was alleged against him and neither

CARIBBEAN LAW LIBRARIAN -·73

was given a hearing. In both cases it is not unreasonable

to say that the basis for the dischar§e under the relevant section was some form of misconduct son the part of these

policemen, though the precise nature of misconduct in both cases, was not disclosed. Lord Reid in Ridge was of the view that the Chief Constable should have been told

. I . '1 J . ,. "2~,, I ld I ' "\'.; IIJ! IS i:ll.cge J~~)tlI!st 111!1l. ;::'0 t00 S lOU lave octn

Douglas. What caused the Commissioner to discharge Douglas on the grounds under which he was discharged? Was it because of Douglas' alleged misconduct, which ap· parently resulted in criminal charges against him? It is diff. icult to resist the view that it would seem to be so, and if it is was misconduct, then clearly he should have been heard before being discharged, as the cases cited above show.

But assuming it was not for misconduct, but for some other cause, then Douglas should have been given an op· portunity to be heard; for the principle at common law is that where there is dismissal for cause from an office not held at pleasure the person concerned should be given an opportunity to be heard, and this comlllon law position, which still obtains in Guyana, should have been maintained by tile Court of Appeal in interpreting section 35(1), as we have already "een.27

Duty to Act Fairly

Assuming, but not admitting, that the Court of Appeal was correct in holding that. there is no right to a hearing under section 35(1) of the Act, it is suggested that under the section there is a duty to act fairly. The Court holds on some occasions that though on the facts of the case before it the duties arc administrative still the persons dis· charging the duties should act fairly. This doctrine to act fairly, which is a recent judicial innovation,28means a duty to observ~, in a limited way, the basic principles of natural justice where the functions exercised by the body are not strictly speaking judicial, but administrative. In R v. Gaming Board L'xparte Benaim,29 a famous gaming club applied to the British Gaming Board for a "certificate of consent" to enable it to obtain a licence for gaming. The relevant Act required that the applicant should get a certi· ficate from the Board sayil]~ that he could be trusted before a licence could be issued. The Board refused the application; and the club brought proceedings to quash the decision of the Board on the ground that the Board did not

act in according with the principles of natural justice. Lord Denning M.R. held that though the Board were not bound to observe the rules of natural justice, still "the Board have a duty to act fairly.',30"They must, said the learned judge,"

give the applicant an opportunity to satisfying them of the

matters specified in the subsection. They must let him know what their impressions are so that he can disabuse them. 3 !

In the first case laying down the principle to act fairly, Lord Parker had said -

CARIBBEAN LAW LIBRARIAN - 74

"Even if an immigration officer is not in a judicial or

quasi judicial capacity, he must at any rate give the immigrant an opportunity to satisfying him of the matters in the subsection, and for that purpose let

the immigrant know what his immediate impression is so that the immigrant can disabuse him. This is not, as I sec it, (1 question of (JcriiJg 01 being required Iu

act judicially, but of being required to act fairly.32

Even if the Commissioner of Police in Douglas was not bound by the rules of natural justice, at least he was bound ttl act fairly. But unfortunately, this doctrine requiring an administrator to act fairly was not even considered by the Court of A ppeaJ!

Administrative or Judicial

Having examined the first reason for the Court of Appeal's decision that natural justice did not apply, it is now opportune to examine the Court's final reason for its decision. Fung·a·Fatl, J .A. gave this second reason with

much clarity. The learnedjudge said:

"Undoubtedly, to my mind, it can only be an admin· istrative discretion which will allow the Commissioner of Police to discipline subordinate officers of the Force with some degree of urgency and promptness in the public interest. 33

In other words, the power given to the Commissioner under section 35(1) is purely administrative and as admin· istrative powers do not attract natural justice, tbe Com· missioner was not bound to give a prior hearing before the discharge.

But what is tbe test to be used for tile purpose of deciding for purposes of natural justice whether an act is administrative or judicial? Fung·a-Fatt, J .A. seems to be of tbe view that the Act is administrative if it has to be exercised "with some degree of urgency and promptness in the public interest.,,34 But, with respect, this view seems

contrary to principle. Banks, LJ., laid down the test as long ago as 1923 when he said that on "principle and authority it is ..... th,'.t powers so far reaching, affecting as they do individual as well as property arc powers to he

d ... 1] ,,15 WI exercised judicially an not mllllStcna. y. lenevcr any body of persons having a legal authority to determine ques· tions affecting the right of subjects or their property, then there is a duty to act judicially. The judicial element is inferred from the nature of the power given by the statute and if the nature of the power is such that it affects tbe right of individuals or their property, then there is a duty to act judicially and natural justice applies.

In one Guyanese case, 36Cranc, I.A. has said that the essen tial thing to regard in distinguishing the ministerial

from the judicial function is the nature of the power, the exercise of which has been called in question. "If the exer· cise of the power", said the learned judge, "involves dis-

missal from office or deprivation of property, then there can be no doubt that the judicial element is clearly present. -No one ought to he left in any doubt that proceedings rela­

ting to removal from office are by their nature ~udicial."3 7

Chancellor Luckhoo in another Guyanese case3

was of the same view. In Re Gerriah Sarran, Crane, 1.A. had further pointed Ollt thet '\l'll('rr propclly ri"hts ,lrp invoIVt'd, it

has been held til"t the attitucc of the collIls towards th'~ proceedings of domestic disciplinary tribunals are in the nature of judicial proceedings altilough the form is a domes­tic one."39 Fung-a-Fatt, 1.A. accepts that under section 35(1) of the Act, the Commissioner of Police has the direct­ion to "discipline subordinate officers of the Force." 4D-rhe power given under section 35(1), it is submitted, is a judi­cial or quasi judicial power and therefore natural justice

applies.

Opportunity to be Heard and Actual Hearing

The learned judge 41has also given a hypothetical situa­

tion to support his view that the power given under section 35(1) is administrative. He said at page 18 of his

judgment --

"I fail to see what can the Commissioner do in a case where an ufficer absents himself from work for two or three months without reporting, as he is required to do. Must he wait until the officer reports for duty, if at all he docs, before taking action".

The Commissioner in such a case can send a notice to the officer's last known place of abode outlining the allega­tion against him and informing him of the time and place where the allegation is to be heard. This is what the COIll­missioner of Police can do. It must not be forgotten that though the rule requiring a hearing f~uarantees 811 adequate opportunity to be heard, it recognises that a notice of a hearing may be valid thuugh not in fact received. In one Trinidadian casc,42it was held that it might be justifiable to

proceed in the absence of a party to whom notice of a hear­ing was sent, if that party had absented himself without reasonable cause.43 In a Malaysian case~4 it has been held that the rule requiring a hearing did not guarantee that a hearing should never proceed or action should never be taken to a person's detriment unless everyone entitled to ~\]l]lcar dues ill fact <lPPC3I.45 In other words, the rule re­quiring a hearing docs not mean that in alJ cases notice of

the hearing must actualJy be served and received. It would be sufficient in some circumstances to take reasonable steps to serve such notice. In Exparle Me Farlane46 notice of a hearing was served but not received and the Court held that the subsequent proceedings were valid. The general rule is that the defendant must be given an opportunity to be heard, not that in all cases he must be heard. The logic of the common law is that in cases where the defendant wil­fully absents himself from the proceedings, or where the administrator takes reasonable steps to give a hearing, then the matters against the defendant must be proceeded with, even though the defendant may not be present. Good ad-

ministration in a society such as ours requires that this ought to be so. The alternative to this approach would mean that a defendant by his reluctance to attend ajudicial hearing would be able to stall the proceedings indefinitely.

For the reasons above, it is suggested that the decision of the Court of Appeal in Douglas is pal]l~lbly wrong and should be lcserved forthwith in the interest, not unly of good administration, but also in the interest of a proper development of our administrative law.

Dismissibility at Pleasure Doctrine

Before concluding, a word ought to be said on the question of dismissal at pleasure since this question was considered at first instance and by Harper, 1.A. in the Court

of Appeal.

h 47 d' d' . I d' 48. G h T ere are cases an JU lCla lcta 111 uyana t at the State could dismiss at pleasure. There are also judicial

dicta that the State in Indcpendem Guyana could not dis­

miss at plcasure.49

Assuming the State could dismiss at pleasure, has lhis power been transferred to the various Service Commissions established by the Constitution of Guyana.

There arc judicial dicta 50 that these Services Com­missions cOllld dismiss at pleasure in Guyana. There are

also judicial dicta that the Commissions are independent

statutory bodies not under the control of the State as to the performance of their constitutional powers and there­fore cannot dismiss at pleasure?51

Bearing in mind these conflicting views on the question of dismissibility at pleasure, one would have thought that the Court of Appeal in Douglas would have taken the op­portunity to enunciate their views of this perplexing prob­lem of dismissibility at pleasure by the State as well as by the Services Commissions. Bu t apart from Harper, J.A. who addressed this problem as it relates to the State, but who did not address it as it relates to the Services Commissions, the remainder of the Court remained obtrusively silent on the issue.

West Indian legal scholars'l2have already written of this topic of the dismissibility at pleasure by the State, as well as by the Commissions, so that any attempt to examine this whole question again would be an exercise in repeti­

tion. One may be forgiven, however, if one attempts brief­ly to transfuse old and new blood into the body of this debate. As we have already seen, where the power confer­red upon an authority is judicial, natural justice applies. The power given to the Services Commissions to remove officers is a judicial power, as we have seen. Parliament, which must be considered to know the law, must have in­tended when it gave this judicial power to Services Com­missions, that natural justice would apply to the Com­missions in the discharge of the functions of removal. If natural justice is intended to so apply, then Parliament did

CARIBBEAN LAW LIBRARIAN - 7~

not intend that the Commissions should be able to dismiss at pleasure, since dismissibility at pleasure is inconsistent with natural justice. Put another way, Parliament when it gave the statutory power to the Services Commissions to dismiss officers, Parliament 'must be taken to have known that where judicial power is given to a body natural justice applies and that natural justice cannot co-exist with the dismissibility at pleasure doctrine. So I would prefer to cuutend that tile Commissions could not dismiss at pleasure because, as a matter of statutory interpretation, this would be contrary to what Parliament intended when it enacted the provisions of the Constitution establishing the Services

Commissions. Therefore" if the Commissions purport to dismiss at pleasure this would be exceeding their jurisdic­tion and the dismissal would be reviewable by the Court in spite of the ouster clause in article 226 of the Constitu­tion of Guyana. 5 3

Conclusion

The cases have shown that the right to a hearing applies whenever there is a dismissal for cause from an office not

held at pleasure. In interpreting section 35(1) of the Act,

to ascertain whether natural justice applies, the Court should have considered these cases as an aid to interpreting the section. By not doing so, and the section being silent on the question of natural justice, the Court misinterpreted section 35(1) of the Act and therefore came to the wrong

conclusion.

Moreover, the Court erred in holding that the power given to the Commissioner of Police under section 35(1) of the Act was administrative. The cases show that where there is power to determinc questions affecting the pro­perty rights of the citizen, the power is judicial and not administriltive, and natur"! justice applies, except where there is lhe dismissibility at pleasure doctrine. Since a person's occupation is his property rights, and since section 35(1) of the Act gives the Commissioner of Police the power to take away these property rights for cause, then this

power is judicial and not administrative and natural justice applies. Further, even if the power given under section 35(1) the Act is administrative, then the Commissioner of Police had a duty to act fairly by hearing Douglas and this the Commissioner failed to do.

As a matter of statullll.\' interpretation, Parliament did not intend that thc Services Commissions could dismiss at pleasure. It is a matter of regret that the Court of Appeal in Douglas did not take the opportunity presented to give a clear statement on the dismissibility at pleasure doctrine as it applies to Guyana.

Oswell Legal* Attorney-at-Law, Guyana.

REFERENCES

1. Civil Appeal No. 59 of 1984. The judgment of the

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Court of Appeal was given in September 1986.

2. Cap. 16:01 of the Laws of Guyana.

3. Act No.2 of 1980.

4. P.S.c. v. Douglas, op. cit., at p. 6.

4A. Ibid at p. 18, per Harper, LA.

5. i'.5'.C. J'. Douglas, up. CIt., jl. 17.

6. Ibid at p. 24, per Harper,J.A.

7. P.S.c. v. Douglas, op cit., at p. 15. No authorities were cited to support this view of the learned judge.

8. Re Wonderland "Cleethropes" 1965 A.C. 59, at p.71. See too R. v. Wakefield 1964, A.C. at p. 172.

9. 77 E.R. 1271.

10. Ibid at p. 1272.

11. 92.E.R.818,atp.820.

12_ Protector)1. Colchester 82 E.R. 850, at p. 851.

13. R. v. Smith 5 Q.B. (1844) 614, at p. 623.

14. 1981 Ch'D 84.

IS. Ibid,atp.l00.

16. (1842) J8.Q.B.173.

J 7. Ibid at p. 190. See 100 Osgood v. Nielson 1872, L.R.

5 H.I~636,atp.649.

17A. Act No.2 of 1980. See Harper, l.A. in P.S.c. v. Douglas, op. cit., at p. 20, disagreeing with Persaud, J .A. in Hyder ,111i v. The Public Sen'ice COlllmission. Civil Appeal No. 37 of 1984.

18. Ibid.

19. Ibid, at p. J9_

20. 1964 A.C. 40.

21. S.A. de Smith, Judicia! Review of Admillistratip(, Action, (4th edn.) p. 227.

22. See the Oxford English Dictionary, Vol. XI at p. 189.

23. Ridge P. Baldwin, op. cit., p. 65.

24. ibid, at p. 66.

2S. Lord Reid seems to have considered that the watch commiltee may have discharged the Chief Constable for SOll1e kind of misconduct.

26. ibid,atp.72.

27. See text to note 8.

28. It was first mentioned in Rc HK. 011 infant 1967 2 Q.B.617.

29. 19702 WLR 1009.

30. Ibid,atp.1017.

31. Ibid.

32. Re H.K. an Infant 19672 Q.B. 6 I 7, at p. 630.

33. P.S.C. v. Douglas, op. cit., at p. 17-18.

1

j

34. Ibid.

35. R. v. Electricity Commissioners 1923 A.E.R. 150, at p. 157.

36. Re Gerriah Sarran (1969) 14 W.E.R. 361.

37. Ibid, at p. 368.

38. Rr- rCI1f,horl?C' (1969) J!i W.l.l<. 353.

39 lind, at p. 366.

40. PS.c. v. Douglas, op. cit., at p. 17.

41. Fung·a-Falt, l.A.

42. A namanthudo v. Oil Field Workers Trade Union 1961 A.C. 945. See too Spencer v. Bramble (1960) 2 W.LR. 222, at p. 227.

43. Ibid, at p. 955-956.

44. Lim ChinAik 1963 A.C. 160.

45. Ibid, at p. 164.

46. J 974 1 W.L.R. 1486.

47. Cumberbatch JI. Weber (1965) L.R. B.G. 408, Nobre,~a v.A.v. ofG.:yana lOW.LR.11n.

48. See for instance Luckhoo C. in Hyder Ali v. P.S.c. Civil Appeal No. 37 of 1984 and Barpn, l.A. in P.S.c. I'. Douglas, op. cit.

49. See Persaud, l.A. in Hyder Ali v. P.S.c., Stoby C. in Nobrega v. A.G. of Guyana at p. 193.

SO. See Re Arthur 1972 19 W.I.R. at p. 30.

51. See note 49. See also George C.J. in Douglas v. P.S.c. 52. See Calvin Eversley, Are Public Servants dismissible

at pleasure in Guyana. 1984. B.A.R. 42. Chucks Okpaluta, Dismissibility at pleasure The Persist­ence of all AU3cronism. (J 977) (j Anglo·American Law Report 284.

53. Sec A nisillillic Ii. Foreign Compensation Hoard (1969) A.C.147.

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