“[…] I am sure that I do not need to remind you chief justice that there is more to the management of cases than fixing timetables. First instance judges often have to remind litigants and lawyers of the significance of what we do.
“A judge who refuses to defer to a defendant whose conduct is unlawful, intimidatory, deliberately contemptuous, is not being overzealous. Such a judge is only doing what the oath of office requires…”
The following is a letter by Madame Justice Carol Gobin to Chief Justice Ivor Archie on the court of appeal’s ruling on the Fifa v TTFA case and the comprehensive overturning of Justice Gobin’s initial verdict:
I believe it was Justice Linda Dobbs who said that ‘fairness is in the DNA of judges’, and I am sure that we would all like to think so. You would therefore understand chief justice, why I must raise my concerns about the ‘observations’ and guidance you gave in the very short judgment you delivered in the above and respond.
You noted that in the proceedings before me there was ‘less than prudent case management and an uneconomical deployment of judicial time and resources’. You formulated new guidance: ‘zeal is to be commended but it should not obscure the need for caution’.
The import of the statement was not lost. In ordering TTFA to pay the costs of it, Bereaux JA, described it as ‘a wasted trial’.
These gratuitous observations were made even when no party to the appeal raised the issue. Fifa had filed no application for a stay of my default trial directions, and TTFA had agreed that the trial should proceed. I believe that these unwarranted statements reflect negatively on my competence as a judge, though I am sure that was not what you intended.
Quite remarkably, chief justice, they were made without reference to my reasons for proceeding in the manner in which I did. The court of appeal, on the basis only of the calendar it would seem, concluded that it would have been wiser to have waited for just a few days for the outcome of Fifa’s appeal, to save precious judicial time.
This is against the background of Fifa’s declaration to the world, that the appeal was filed ‘as a formal step’ and that even then it did not recognise the jurisdiction of our local courts.
I am sure that I do not need to remind you chief justice that there is more to the management of cases than fixing timetables. First instance judges often have to remind litigants and lawyers of the significance of what we do.
A judge who refuses to defer to a defendant whose conduct is unlawful, intimidatory, deliberately contemptuous, is not being overzealous. Such a judge is only doing what the oath of office requires.
The authority of our courts is the foundation of our justice system. How we respond in the face of a patent attempt to undermine and deride it, ultimately defines our judiciary.
It is clear that for some reason and somewhere along the line, and after the trial, Fifa changed its position on recognising the jurisdiction of the ‘local courts’. Its appeal changed character from one filed as a ‘formal step’ to one it decided it would actually pursue before you. Because of that, your judicial time was well deployed but no one could reasonably suggest that I should have allowed a possibility of Fifa’s vacillation to dictate the pace at which I discharged my duty in the high court.
As for the concerns about the waste of time on the trial, I do not consider that my judicial time was wasted on an undefended trial for default judgment on affidavits. There is nothing unusual about default trials where declaratory relief is sought.
In the end, the TTFA had the hearing it was entitled to for all of an hour and a half. Fifa chose not to participate. My docket remained well under control. No other matter suffered for want of my attention.
The outcome of the appeal has caused me no regret. I respect the ruling of the court of appeal but urge you to have a look back at the 2012 JEI Distinguished Lecture of Justice Saunders, now president of the CCJ, for his advice as to the need to reverse respectfully for the maintenance of public confidence in the system.
I end by seeking clarification on the guidance that first instance judges are now mandated to follow, because quite frankly I do not see myself doing anything differently if this were to arise at any time in the future.
For obvious reasons, I am forwarding this letter via email to Bereaux JA and the first instance judges.