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Civil Procedure Rules not gazetted, says lawyer

BY PAUL HENRY Coordinator - Crime/Court Desk henryp@jamaicaobserver.com

Tuesday, July 22, 2014    

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ATTORNEY Hugh Wildman claimed yesterday that the Judicature (Rules of Court) Act, more commonly known as the Civil Procedure Rules (CPR) 2002, was not gazetted and as a result is not binding.

Wildman told the Jamaica Observer that he made the discovery while doing research in a case he is seeking to take to the Judicial Committee of the London-based Privy Council. The case, which involves former head of the Tax Administration Department Viralee Latibeaudiere, was thrown out for breaching Part 3.5 of the Civil Procedure Rules, which speaks to the filing of documents within a certain timeframe.

Wildman's assertion about the rules also forms part of an affidavit filed yesterday with the court and contains letters exchanged between himself and Chief Justice Zaila McCalla about the issue.

Wildman, on July 7, wrote to the chief justice saying that he had checked with the Government Printing Office and was informed that the CPR was published by a private company — the Caribbean Law Publishing Company — and was not gazetted.

He asked the chief justice, who is chairman of the Rules Committee of the Supreme Court, to furnish the necessary evidence that the CPR was gazetted. However, McCalla responded on July 18 saying that she has no personal knowledge of his assertion as she took office in June 2007. She said all amendments to the CPR during her tenure as chairman have been gazetted and circulated.

"A lot of litigation depends on the rules. A lot of people won and lost their case on rules that never existed," Wildman told the Observer, noting that the issue carries "serious ramifications".

As a result, Wildman is calling for the suspension of the functions of the Court of Appeal and the Supreme High Court, where the Civil Procedure Rules (CPR) are concerned. As it now stands, he said, the court should still be operating under codes the CPR was meant to replace.

"All rules of the court relating to the procedure in civil proceedings in the Supreme Court, save for those relating to insolvency (including winding-up of companies and bankruptcy), and matrimonial proceedings, are hereby revoked," noted a statement on the CPR published in 2002.

Yesterday, reactions from the legal fraternity to Wildman's claim were varied. Some attorneys said they would be going through their files to see how many of their claims have been thrown out on account of some breach of the CPR in order to seek restitution on behalf of clients. Others said that if that is indeed a fact Parliament could easily pass a law to validate decisions made by the court under the CPR.

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