The Rule of Law!

First Published: 2001-07-12

I am a firm believer in the "rule of law." If it is not right for me to intentionally take advantage of another person, surely it cannot be right for them to take advantage of me or anyone else. But there is an anomaly in the Magistrate-s Court system allows this to happen.

The company I work for recently took another party to court to obtain reimbursement for a returned cheque. This was after months of phone calls and unfulfilled promises that the individual would come in and settle the $250.

We decided that as a matter of principle we should attempt to claim our money through the Magistrate-s Court ourselves, since to hire a lawyer to represent us for such a small matter made little economic sense. So we typed up the summons, it was authorised by the court and we had it delivered by a policeman to the individual in question.

Our day in court finally arrived. Unfortunately the Magistrate was ill and the case transferred to another court for processing. The other court had its usual burden of cases and we were told to return to the original court about a month later. Before we left however, the Magistrate took the testimony of the police officer who delivered the summons so at least he would not have to be off duty for another half day. The defendant never appeared.

Back to court.

On returning to court at 10:00 AM on the appropriate date as instructed the case was finally called at about 1:45PM. The defendant was again no where to be found.

In proceeding the Magistrate asked who the council was for the company. I explained to her that I was representing the shop as I had done on many other occasions with matters like this. A mini war of words ensued with the Magistrate suggesting that I could never have been in her court with a case like this. I explained that it was in her very court but she was not the Magistrate.

This served little purpose because she instructed that according to the rules an individual could not represent a limited company. Being "biggety" I asked where I might find these "rules," but unfortunately they were not available.

The search for the rules.

When considering that a case involving a bank was heard earlier that day and their representative was not a lawyer I was feeling a little dubious of these instructions and thought it appropriate to write the Magistrate to have the matter clarified.

A very curt reply was received giving the impression that it was not up to the Magistrate to advise mere mortals like me where to find the rules or to question her authority to hear from another mere mortal in a similar case.

So I then wrote to the companies attorney and discovered that this appears to be a most peculiar ruling as it is well within the Magistrate-s authority to proceed. After all we are not in the Supreme Court.

The principle of the thing.

The assertions that companies are unfair and take advantage abound. But surely, the court should not allow an individual to write cheques for products or services that bounce with the intent of not settling the balance.

Oh you have the right to hire a lawyer to deal with the matter you say. Let-s look at the numbers for a second. We are owed $250, hire a lawyer who will charge us $300 to $500 to appear in court. We are in the hole another $50 to $250, and that-s if the defendant appears in court. My experience is that after two or three appearances the Magistrate will then grant a warrant for the defendant-s arrest. Therefore, we would probably owe the lawyer $900 to $1,500 without the promise to repay the original $250 yet.

As I commented to our attorney, if this Magistrate is correct it appears that the legislators, who are by and large lawyers have created their own protectionist legislation. In other words, a company can-t go to court without a lawyer to represent them.

I suggested (tongue in cheek of course) that if this was the case, the automotive industry should also have a law stating that absolutely no vehicles could be purchased except from Bahamian new and used car dealers. Restricting imports by individuals.

What is Magistrate-s Court for?

It has always been my understanding that the Magistrate-s Court was to allow for the settlement of matters like this so all parties appearing could do so in a less formal atmosphere than the Supreme Court, would have less expense, and the matter would be dealt with expeditiously.

Furthermore, in other countries lay people act as Magistrates in the lower courts.

Morals and other six letter words.

I have concluded that rulings like this give the impression that it might be in one-s best interest to act amorally. When the court system allows for the frustration of legitimate cases in this manner, is there any wonder people write cheques with the knowledge that it will be returned, and realise that they can promise you anything, but give you sweet nothings when you seek settlement?

Bank secrecy laws not withstanding, if an individual writes a cheque that it is returned by their bank it should be made good within thirty days unless legitimate arrangements are made.

For the courts to suggest that an individual cannot represent their company on matters like this we are encouraging the behaviour we are getting. In the words of the English Novelist William Somerset Maugham, "It is a funny thing about life: if you refuse to accept anything but the best, you very often get it."

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