Do you qualify as a spouse? Lessons from Albert Selby v Katrina Smith

court picThe deceased, Albert Selby, died without leaving a will and thus his estate is to be dealt with according to the Succession Act and the rules of intestacy which give priority to the deceased’s spouse, children then parents then siblings then nephews and nieces. The deceased was divorced, had no children and his parents died before him. The parties in the Albert Anthony Peter Selby v Katrina Smith [unreported] C.A. B’dos Civil Appeal No 14 of 2010; 2017-02-14 case are the brother of the deceased man and an unmarried woman with whom the deceased was cohabiting up until his death.

At the center of the case is the Succession Act of Barbados, particularly Section 2 which speaks to who is considered a spouse under the Act. Section 2 (3) and (4) of the Succession Act states

(3) For the purpose of this Act, reference to a “spouse” includes

  • A single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
  • A single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.

(4) For the purposes of subsection 3, a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or to a man who is divorced.

One of the two issues which the High Court was asked to determine was whether Ms. Smith is capable of being regarded in law as the deceased’s “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death. The High Court decided in favour of Ms. Smith and the deceased’s brother appealed to the Court of Appeal.

The deceased having been married at the start of the cohabitation with Ms. Smith and for a part of the 5 years immediately preceding his death, the issue which the Court of Appeal had to determine was who constitutes a single person for the purposes of Section 2 of the Succession Act.

The Court of Appeal handed down its decision last month and held that Mr. Selby though separated but not divorced from his wife for the requisite period of not less than five years immediately preceding the date of his death cannot be considered as single. The consequence of the Court of Appeal’s decision is that Ms. Smith, who regarded herself as Mr. Selby’s partner for several years cannot benefit from his estate on intestacy since she does not qualify as his spouse.

                                                                                                           – Kara-Je Kellman

Personal Injuries 101

HAPPY NEW YEAR!!!

I know, we are a little late but we still wish you all the best for 2017.

This is our first post for the year and we are going to start the ball rolling with a brief exposé on Personal Injuries.  As usual, I will try to keep it short and simple. However, feel free to engage us more in the comments section.

What are personal injuries? Yes, you guessed it – injuries to your person! 🙂

To put it in a legal sense, personal injury is harm, pain or suffering to your body, mind or emotions. It does not include damage to property.

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Many personal injuries matters arise from vehicular accidents, accidents at work and slips and falls at public places. These matters are often as a result of a person or persons’ negligence or recklessness.

Where it is admitted or found that a party is liable for the injuries, loss and damage suffered by another party, they (or their insurers) are liable to compensate the injured party. In many of the cases involving insurance companies, the matter is settled without having to go to court.

You should note that there is a distinction between quantifiable loss and unquantifiable loss. Quantifiable loss is called Special Damages and unquantifiable loss is termed General Damages.

Special Damages include medical expenses, hospital and doctor’s fees. According to Haynes C in Heeralall v Hack Bros (Construction) Co Ltd (1977) 25 WIR 117,

“Special damages…are awarded in respect of out-of-pocket expenses and loss of earnings actually incurred down to the date of the trial itself. They are generally capable of substantially exact calculation, or at least of being estimated with a close approximation to accuracy.”

On the other hand, General Damages are not capable of exact or approximate calculation. Lawyers, in litigation, or in negotiating a settlement, use the following subheadings under General Damages.

  • Pain and suffering (past and future)
  • Loss of amenities (loss of enjoyment of life)
  • Loss of expectation of life (reduced life expectancy)
  • Loss of future earnings
  • Loss of earning capacity

Thus, apart from recovering money for medical expenses associated with the injuries suffered, the injured party is generally entitled to be compensated for physical, financial and emotional damage suffered as a result of the accident or incident, which are incalculable in terms of dollars and cents.

                                                                                                           – Kara-Je Kellman

Keeping On Side in 2017

statutory-obligationsFor some it has been a difficult year! As a new year approaches all business people must keep in mind their statutory obligations and seek to meet them.

When you are in business paying taxes is very much a part of the enterprise. However there are some obligations which you may have a tendency to forget:

  1. If you own an international business company please remember that the annual return must be filed by December 31, 2016
  2. If you are an International Business service provider you must renew your licence by the same date.
  3. If you have a domestic (ordinary) company of any kind please remember that there is now an annual return to be filed with a penalty of $10.00 per day. There are some who might not have met this obligation in 2016. If so penalties would be accumulating so this needs to be addressed immediately.

  4. Penalties are now being enforced for failure to notify the corporate registry of any fundamental changes to the company.
  5. All those involved in certain businesses and professions such as lawyers, real estate agents and hairdressers must apply for a renewal of their licence by the end of January 2017.
  6. For those who are members of non-profit companies please remember that the requirement to file financial statements will now be enforced.
  7. Know Your Customer procedures for gate keepers are also being enforced. Gate keepers are not simply financial institutions but includes lawyers, accountants and real estate agents amongt others. Broadly speaking one must be conscious of ensuring that one is not a part of a larger money laundering, financial crime or terrorist scheme.

Lynette Eastmond

Reviewing the Provisional Collection of Taxes Act -taking the lazy way out?

house-of-assembly

 I always believe that ultimately, if people are paying attention, then we get good government and good leadership. And when we get lazy, as a democracy and civically start taking shortcuts, then it results in bad government and politics. –  Barack Obama

The Barbados Act gives the State the ability to impose new taxes without the Citizen having the opportunity to vet those taxes

The Provisional Collection of Taxes Act (PCTA) Cap 85 of the Laws of Barbados gives the Minister of Finance through the Parliamentary process the power to make and have resolutions passed allowing taxes to be collected without the relevant tax legislation having been enacted.

The Commencement date for this Act is June 30th 1967.

The Act is very short and contains the following features:

  1. The Act covers existing taxes as well as new taxes.
  2. Once contained in the approved budgetary proposals of the Minister of Finance, they have effect on the date announced by the Minister as if the appropriate legislation had been enacted.
  3. The legislation has to be implemented within four months of the date of the proposals made by the Minister of Finance in the House of Assembly.
  4. Where the legislation is not introduced and passed within the required time frame any taxes paid under that legislation are to be refunded.

The UK Act is fundamentally different from the Barbados Act

The purpose of this mechanism seems to be to allow the State to continue to collect taxes until the bill authorising such collection has been passed into law. The legislation was adapted  from similar UK legislation.  The reasoning behind this Act in the UK was that income tax and corporation tax were considered to be annual taxes, and could not be collected without the passage of a Finance Bill which would always take some time before the Royal Assent was given. In the interim the State could continue to collect taxes.

The UK replaced its 1913 Act with new legislation in 1968. The UK PCTA of 1968 is somewhat different from the Barbados legislation in the following material respects:

  1. It provides for the renewal for a further period of taxes already in force, whether at the same or different rate and with or without modification.
  2. The resolution must have a statement that it is expedient in the public interest to begin immediate collection of taxes without the enactment of the relevant legislation.
  3. It does not apply to the imposition of new taxes.

The PCTA as a Mechanism for the Imposition of New Taxes is completely inappropriate

The PCTA would work well in the circumstances outlined in the UK Act. The taxes and their collection  would have been in effect for the past year at least and the PCTA would permit the seamless collection of taxes with no disruption of the activities of the taxpayer and the taxpayer would have had the opportunity to review the legislation previously. The mechanism would also work well for a change in tax rates.

It is submitted however that the mechanism does not work well for the imposition of new taxes.

In Barbados the further practice has developed that in circumstances where the legislation has not been enacted within the stipulated period of four months an Act validating the collection of the taxes without the appropriate legislation can be enacted.

The National Social Responsibility Levy is a new tax which should never have been imposed without the provision of legislation available for Scrutiny.

According to the Summary to the Budgetary Proposals of 2016 which appear as an Appendix thereto, a National Social Responsibility Levy (NSRL) was to be introduced from September 1, 2016. The Levy was to be introduced at a rate of 2% on all imports. The levy would also be applied to goods manufactured in Barbados in order to avoid breach of World Trade Organisation rules against imposing discriminatory levies on imports.  There would be no imposition of the levy on goods imported to be used in local manufacturing in order to avoid a double imposition of the levy.

The Budgetary proposals of the Minister of Finance were delivered in the House of Assembly on August 16, 2016. The practice direction from the Barbados Revenue Authority was issued on August 30, 2016. Despite the practice direction there was still a great deal of uncertainty as to the mechanism for the imposition of the tax.

It is submitted that this was insufficient time to put into operation a new tax. There is no obligation by the Minister of Finance to use the PCTA even though available as a legislative tool. Far less disruption would have occurred had the practice of consultation and  running models for the imposition and collection of taxes been engaged.

The Constitution allows the State to tax its Citizens but does not give the State the right to circumvent the legal fetters meant to protect the Citizen.

Let us start at the beginning. Money can be considered property and  Section 16 of  the Constitution of Barbados does protect Barbadians from the deprivation of property  “ except by or under the authority of a written law”. Within that very section   there is a carve out for taxation where the act of deprivation is “ in satisfaction of any tax, duty, rate, cess or other post”. Nevertheless despite this carve out one could argue that exceptions to fundamental freedoms should be construed as narrowly as possible in order to avoid the creeping erosion of such rights.

Dr. Francis Alexis in his treatise Changing Caribbean Constitutions states:

Where the limitation of a right is allowed by the Constitution, what is done must have a legitimate aim or objective regarding the permitted limitation. The measure provided for by the law must be proportionate to that aim, the law must not be disproportionate, overbroad, excessive or too wide. There must be proportionality between the measure applied and the mischief being cured.

In support of this position he quotes Lord Diplock in Ryan v. A-G (1980) A.C 718 at 718E.

In the case of the NSRL the State is seeking to impose a new tax which prima facie would be in breach of the fundamental rights of Citizens in the circumstances where there is no written law. Is the PCTA the written law to which the Constitution refers? Arguably it is not, since it is not a substantive Act itself which contains any charging provisions by which a tax could be levied and more worrisome any safeguard provisions for disputing the levying of such taxes.

Even if one were to accept that the PCTA could be used for the imposition of new taxes that piece of legislation includes a fetter in favour of the Citizen in that it gives the State four months  to put its house in order. In many instances the State side steps that fetter in favour of passing a validation act in order to cure the breach.  The purpose of legislation in taxation is to ensure that there is certainty and that the provisions of the law do not encroach upon the fundamental rights of the Citizen more than is necessary. It is submitted, that to then take the next step of validating such legislation erodes another mechanism to check the encroachment of the State on the rights of the Citizens.

If one were to embrace the argument of Dr. Francis Alexis one must look to the mischief which the State seeks to cure and determine its legitimacy. One can only guess that the State is seeking to avoid the process of  implementing a new tax through the process of writing a policy paper, consulting with stakeholders and passing the resulting legislation through Parliament and the Governor-General.  Is the ultimate mischief that the process is too time consuming? The Constitution is after all according to Section 1 of the Constitution the supreme law and one should tread cautiously when dealing with provisions which might facilitate a breach of the Constitution.  And the limitations to such rights and freedoms allowed by the State are according to section 11 of the said Constitution in existence to ensure that all Citizens enjoy them or are in the public interest, not to facilitate the State ignoring legal fetters in exchange for the quick collection of taxes.

The Constitution, fundamental rights and freedoms, tax legislation and short cuts do not go hand in hand.

It is unconscionable that the PCTA should be used to impose new taxes on Citizens and should be halted.

It would seem that the PC TA has strayed from its origins which was to allow the State to continue to collect existing taxes until it had a fresh mandate to do so under legislation. The PCTA raises too many Constitutional and moral issues in seeking to impose new taxes through this mechanism. The current approach of the State results in the State engaging in activities  which do deprive the Citizen of property but without the necessary scrutiny. The substance of the legislation is not circulated in the Gazette in order to give adequate notice to the Citizens and nothing is laid in Parliament to be scrutinised by the representatives of the people before implementation. New taxes should not be imposed on Citizens without the most careful scrutiny.

This means that the Citizen can not  determine the practical impact on him, his business or his household and more fundamentally whether it encroaches on any existing fundamental rights. The mad scramble to hold consultations and collect taxes within a matter of a few weeks may provide an adrenaline rush, however there can be  no reason good enough to sail so close to the abrogation of the rights of Citizens. The imposition of new taxes through the PCTA should be put to an end and the PCTA amended in order to remove the ability to impose new taxes through this piece of legislation.

Lynette Eastmond

On Harassment and Sexual Abuse: #LifeInLeggings

Over the last several days social media has been alight with personal accounts of sexual harassment, rape, sexual abuse and physical and verbal abuse which stemmed from the above atrocities. Persons, mostly women from the Caribbean, related to the world of social media some of their untold stories. What started as a flame has been the catalyst for many a conversation, discussion, vlog and even newspaper article. Many persons have now finally found the strength and courage to relay their experiences to their friends, associates, strangers – the world.

These posts have been a source of encouragement for some and a reminder to others that they are not alone in their experiences. It has also caused countless persons to reflect, do some retrospection and introspection and realise that they are or were a part of the problem. Many persons have apologised. Many have openly supported the victims and condemned the culprits. Society was also not left unscathed. We know that often at the heart of these issues is how we were conditioned and thus society was also thrown into the fire. In light of all of this, I have undertaken to set out below what the law offers to the victims of these inhumane, highly offensive acts.leggings

The Minor Offences Act Cap. 137 at Section 2 (1) says ‘ Any person who…

(c) wanders in the public streets or highways or in any place of public resort and behaves in a riotous or indecent manner;

(d) in any street, highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(e) loiters in any street highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(f) in any street, highway or public place, including a beach, without lawful authority or excuse (the proof whereof shall lie on the person accused), accosts, molests, threatens or harasses any person or follows him about;

commits an offence and is liable on conviction before a magistrate to a penalty of $2500 or to imprisonment for 2 years or both.’

Section 2(2) states that in this Section, ‘ “harass” means to

  • Use words, gestures and actions that annoy, alarm or abuse a person;
  • Insult, taunt or challenge a person in a manner likely to offend;
  • Use obscene and profane language to intimidate a person; or
  • Disturb or irritate especially by continued and repeated acts.’

A Sexual Harassment (Prevention) Bill is also in the works and is expected to afford greater protection to employees against sexual harassment in the workplace.

                                                                                                     – Kara-Je Kellman

“Do I Have To Go To Court?”

young man sitting thinking, contemplating - isolated on white

It depends.

If you are asking this question because you have started a matter in Court then you should definitely go to the court hearings, even if you have a lawyer. Your attendance at Court signifies that you are interested in the matter and it also shows respect for the Court and its proceedings. Further, you should attend the sessions in the event that the Court wishes to solicit any information from you which might not be within the personal knowledge of your attorney. If you are representing yourself you should not think twice about going to Court – just go!

If someone has initiated an action against you, the answer is still yes – for all of the reasons stated above.

If you are defending a criminal charge in Court then you should definitely turn up to Court on the specified date, unless you like the idea of being arrested. In this case, non-attendance is not harmless! In fact, the magistrate or judge may issue a warrant for your arrest. Your non-attendance at Court may be even more disadvantageous to you if you were on bail. The judicial officer may rescind bail and remand you into lawful custody since the main condition of bail is to appear at Court on the specified dates and times for the “calling” or hearing of your case.

If you are the virtual complainant in a criminal matter, you risk having your matter thrown out if you do not show up at Court for the trial of the matter.

You may be asking this question because you are considering your options for relief. The parties can assemble and with the aid of their attorneys begin negotiations with the aim of coming to an amicable agreement. Moreover, if you initiate a civil action at Court, at the first hearing or at some subsequent hearing, the Court may refer the matter to court-annexed mediation. The parties may also ask the Court to exercise that option. This process is intended to be less time consuming and allows for free discussion of issues with the goal of coming to an agreement with the professional assistance of a qualified mediator.

– Kara-Je Kellman

Gun Violence in Barbados: 100 Days Jail Before Bail?

Recently, there have been discussions on whether a person charged with an offence under the Firearms Act Cap. 179 of Barbados should be automatically sent to jail for 100 days or some other specified period before bail is available to him.gun_violence-1-pic

In my view, a person charged with an offence should be treated as innocent until he admits guilt or until he is found guilty. To implement laws which mandate the automatic remand of a person who is charged with a firearm offence not only usurps the power of the presiding judicial officer but defeats a fundamental principle of the rule of law, that is, a person is innocent until proven guilty. The Bail Act already sets out the circumstances under which a judicial officer may deny bail. The Bail Act also states what factors the judge or magistrate may consider when deciding whether or not to grant bail.

In my opinion, Barbados should not follow the twin island Republic of Trinidad and Tobago and amend its Bail Act to mandate that a person charged with certain firearm offences is not eligible for bail or that such a person must spend a certain period on remand before he or she can be considered for bail. Of course, the Court should always seek to balance the interests of society with the interests of the accused person. If the person charged is fit for bail in accordance with the Bail Act, the judicial officer should exercise his discretion to grant him bail.

                                                                                                                   – Kara-Je Kellman