v41 i1&2

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West Indian Law Journal Volume 41 Issues 1 & 2

Edited by Ms. Carol Aina, CD

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Editorial Board

Ms. Eulalie Greenaway
Senior Tutor, Norman Manley law School

Miss Dorcas White
Senior Tutor Emerita, Norman Manley Law School

Hon. Mr. Justice C. Dennis Morrison, OJ, CD
Former President of the Court of Appeal, Jamaica

Ms. Miriam Samaru
Principal, Hugh Wooding Law School

Ms. Tonya Bastian-Galanis
Principal, Eugene Dupuch Law School, The Bahamas

Dr. Derrick McKoy, CD, KC, PhD
Attorney General of Jamaica

B. St. Michael Hylton, OJ, KC
Attorney-at-Law and former Solicitor General of Jamaica

Hon. Mr. Jefferson Cumberbatch
Justice of Appeal, Supreme Court of Barbados

Mr. Ian Wilkinson, KC
Attorney-at-Law, Jamaica

Professor Shazeeda Ali
Dean, Faculty of Law, The University of the West Indies, Mona,
Jamaica, and Associate Tutor, Norman Manley Law School

Editorial Assistance provided by
Ms. Irene Clarke

Issue 1

This paper draws attention to the approaches taken by the courts over time in interpreting a variety of legal documents both Statutory and Commercial. It describes perennial problems and developing approaches and solutions. It seeks to illustrate the legal complexities involved in the interpretation process. 

It specifically examines long established principles and maxims such as the doctrine in Heydon’s Case, the Always speaking principle and the Moorcock Doctrine. Very importantly, it discusses the judgment of the UK Supreme Court in the Investors Compensation Scheme Case and the extent to which the approach of textualism has been replaced by one of contextualism. Attention is drawn to the subsequent cases which appear to question or modify the Investor’s Compensation Case approach as well as to the continuing dynamic nature of the subject.

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Jamaica is one in a growing number of territories in the Commonwealth Caribbean that have enacted new insolvency laws in a bid to modernise their  corporate and personal insolvency law regimes. Since 2017, there has been a  trickle of first instance written judgments by Jamaica’s Supreme Court which have begun to animate the Insolvency Act, 2014, which came into effect in 2015. Two of these judgments concern misuse of the insolvency process. The respective courts, having found an abuse of process by the relevant debtors, resorted to exceptional remedies under the legislation – exempting a creditor from the moratorium arising where a debtor has recourse to the rescue procedure, and annulling a bankruptcy.

This article examines these judgments in the context of the broader purposes and policies informing modern insolvency law. It argues that while rules of law may require that courts take into account the debtor’s conduct in determining misuse of the insolvency process, judicial decisions on this issue are likely to be enriched where courts foreground the financial condition of the debtor and infuse their decision-making with considerations regarding the main objectives of the new legislation.

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Should the prosecution be permitted to adduce evidence that the complainant in a sexual case made a report to several persons when it is known that one or other of these persons is not available to testify? What is the evidential value of such testimony? How can the defence effectively test such evidence? What direction should be given to the jury? Will such evidence advance or hamper the cause of justice or the development of the law of evidence? These questions arise directly out of the decision of the Privy Council.

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The article examines the potential impact of the decision of the House of Lords in Moore Stephens (a firm) v. Stone Rolls (In Liquidation) [2009] UKHL 39 on the development of commercial fraud law in the Commonwealth Caribbean and concludes that Moore Stephens was wrongly decided and should not be followed by Commonwealth Caribbean courts. The article begins from the premise that Caribbean courts are not hidebound to stick slavishly to the English common law as declared by the House of Lords. The article examines the jurisprudence in Commonwealth countries that have refused to apply Moore Stephens or have found creative ways to distinguish the decision to arrive at a just result which ultimately provides the victims of fraud with a remedy. It concludes that Caribbean courts should take that approach and highlights some early signs in the Caribbean where that is indeed happening.

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Issue 2

The CARICOM Secretariat and other CARICOM institutions are immune from any law suits brought in member states national courts by employees. This caused the employees to be without an appropriate judicial body or platform for the settlement of disputes regarding their terms and conditions of employment.

It was evident in 2007 in the lead up to the 2008 legal case Johnson v. CARICAD, AR. 2 at the Caribbean Court of Justice (CCJ) that there was a need for an administrative tribunal for the employers and employees at the CARICOM institutions and the CARICOM Secretariat. This led to the establishment of the Caribbean Community Administrative Tribunal (CCAT), which allowed for matters of dispute between employees of CARICOM Institutions to be heard and to reach a settlement.

This paper concludes that the CCAT has taken its rightful place among the family of international administrative tribunals. In so doing it has added value to the statues which preceded it by introducing innovative features which balance the immunity of regional organisations from suit in domestic courts with the constitutional right of employees to a fair hearing before an independent and impartial tribunal.

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An apt analogy can be drawn between the challenges produced by pouring new wine into old wineskins and the various amendments to the Labour Relations and Industrial Disputes Act (LRIDA). This article traces the rationale for statute’s enactment, the various revisions made thereto and their effects. It posits that the most recent changes are “new wine” when examined against the legislation’s ethos which is threatening to “burst” the Act’s proverbial wineskins with possible deleterious effects to Jamaica’s labour and employment law landscape. Further, based on Jamaica’s current economic, legal and social
environment, the time has come for a comprehensive review of this seminal law. The review should examine whether the LRIDA’s underlying framework remains relevant, and if not make suggestions that the current “new wine” is poured into appropriate wineskins to ensure that the country profits from a strong legislative framework which inures to the benefit of all the stakeholders.

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This article considers attitudinal, policy and legislative barriers to the social inclusion, equality and dignity of persons with psychosocial disabilities in Trinidad and Tobago. Its analyses the recent high court decision, Cheryl Miller v. The NWRHA and Others, to gauge TT’s state of progress towards a social model approach to disability, as endorsed in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). It considers the Cheryl Miller ruling against a similar case, Ingrid Warner v. The AG of TT, which was decided decades earlier. It calls for the needs of persons with psychosocial disabilities to be conceptualized in broader terms, beyond medical intervention, to include equality, dignity and social inclusion. It encourages state actors to embrace their duty to design and implement disability strategy, policy and legislation to further the autonomy, equality and inclusion rights of persons with psychosocial disabilities.

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