Learning from Jamaica

It is not the first time that Jamaica has stirred the Caribbean waters. It has been in the headlines for some time as the bold CARICOM brother providing refuge for a deposed leader. . . It has rocked the world with its reggae/dancehall and now unique if not provocative “flexing.” In the legal world it is famously known for the Pratt and Morgan Privy Council decisions that generated into a cry for abolishing the Privy Council as the final court of appeal. In these matters and more the Jamaican experience has influenced Caribbean thinking. As for the judicial system, Jamaica is also known as one of the first countries in the English speaking Caribbean to tackle head-on the crisis of the Civil Procedure Rules (2002) on January 1 2003. These new rules were designed to eliminate the backlog of cases in the civil courts and expedite the delivery of justice in numerous aspects of Jamaican life from simple personal injury actions to complex constitutional motions. Indeed the common desire of the “Caribbean citizen” is for a more reliable and efficient judiciary. The Caribbean people have more similarities than we would care to admit.

It is a matter of record that the experiment to implement similar civil procedure rules in Trinidad and Tobago to overhaul the entire civil procedure system did not find favour with many practitioners. Several saw the new rules as increasing the overall costs of litigation for the average litigant and there was uncertainty if not insecurity in having the Court supervise the conduct and progress of cases. Despite similar reservations Jamaica has rushed headlong into implementing their new rules to commence an overhaul of a civil system which creaked under the weight of the demands of litigants seeking justice at a more efficient rate and forcing the judiciary to recognise the advent of the 21st century. Speaking with practitioners in Jamaica we obtained a feel for their experiences under the new rules.

There was a huge backlog of cases in Jamaica and on average a litigant had to wait years before getting a trial. The language of the previous rules was archaic and cumbersome and in fact had led to much litigation in which the subject matter was the interpretation of the provisions of the Rules themselves. The previous Rules also failed to recognise alternative forms of dispute resolution such as mediation or arbitration and to make them available to litigants in the judicial process. Some of the frustrating aspects under the old rules in Jamaica included constant adjournments. In fact some of these adjournments were caused by being taken by surprise in the course of a trial by aspects of evidence, oral or documentary, which were not previously known to exist or were not anticipated. Adjournments were caused simply because the other side was not ready.  This was further aggravated when a party or witnesses had travelled from abroad or from the rural areas to attend Court.

Initially, the response to the New Rules in Jamaica was that of suspicion. However after seminars, it became one of acceptance of the need for change but reluctance to embrace the anticipated change. Then there was the acceptance of part of the framework and rejection of a part. There was the acceptance of the general changes in court procedure but a refusal to accept Mediation as a part of that process, unless it was voluntary. Mandatory mediation forces parties to meet and mediate which contradicts the idea of mediation being a voluntary process. The result of this was that the Jamaican Bar Association voted against mandatory mediation as a part of the process and the Rules Committee went along with a Mediation Pilot Project which was voluntary. This Pilot Project to date has not had sufficient volunteers. As a result, unfortunately this potential method of resolving disputes and removing some of the cases from the Court is not being adequately utilised. The position is being reviewed and ultimately Jamaica may have to resort to mandatory mediation as part of their civil rules.

After seminars involving the Public, members of the Public who were present were enthusiastic and welcomed the introduction of the Rules. It is too early, however, to say how the Jamaican public perceives the new rules. There are several attractive features of the new rules in Jamaica. Indisputably the most attractive feature is the opportunity given for resolution of disputes at different stages of the proceedings — for example at the case management conference or pretrial review where the Judges sit with the Attorneys and litigants and actively manage the cases, and mediation. The feelings on the success of the new rules in Jamaica are mixed. The process is definitely more transparent for litigants. It is easier to identify the issues in an opponent’s case well in advance of the trial. There is greater certainty of a trial date. Mediation is proving a more satisfying method of resolving disputes rather than endure a trial. But there are some frustrations.

The major difficulty thus far has been that the administrative machinery was not in place. The training staff was incomplete and the appropriate software is still not in place. Case management conference times for most cases are too short and therefore does not lend itself to effective use of the powers of Court to permit explorations of settlement. The absence of sufficient volunteers to the mediation process results in cases being fixed for trial which could possibly be earlier resolved. Overall the administrative staff of the Court has yet to adapt to the demands of delivering an efficient service. The approaches to various aspects of the procedure is not as yet applied uniformly by the Judges and there is a need for the Judges themselves to become better acquainted with case files at the case management conference to actively manage the cases.

Is TT ready? It has the appropriate software and administratively appears to be much more structured than in Jamaica. The Judges in this jurisdiction have a more pro-active approach to the utilisation of the existing process to achieve the resolution of disputes and there is an eagerness to get matters moving. The backlog in the Court of Appeal has significantly been reduced if it existed at all. There is a feeling from our counterparts in Jamaica that TT’s Judges and the Court generally are better equipped to deal with the New Rules than they were. Of course, this begs the question that if the car is working why overhaul the engine. However in an age of growing competition the time may be ripe for TT to ensure that its vehicle of justice is competitive and efficient and to learn from the lessons from Jamaica.

The Law Association of Trinidad and Tobago