Former Grenada Attorney-General Jimmy Bristol, KC has scored a major victory in getting a member of the Court of Appeal to step down from office on the grounds that his appointment was unconstitutional.
Bristol, who served under the 2008-13 National Democratic Congress (NDC) Congress government of Tillman Thomas, won his case brought against the Court of Appeal Justice Eddy Ventose.
High Court Judge Raulston Glasgow who served for many years in Grenada before his transfer to Anguilla a few weeks ago delivered his ruling in Bristol’s favour which is a major blow to the Court of Appeal.
Justice Glasgow declared that Ventose was not qualified to be appointed as a Judge of the Court of Appeal and declared his appointment to be unconstitutional, null and void and of no effect.
According to one senior local lawyer, the consequence in law of Glasgow’s ruling is that there is now a vacancy in the Court of Appeal for a Justice and that Ventose’s appointment should be treated as if it never happened.
As a public service, THE NEW TODAY reproduces in full the Glasgow ruling on the Ventose matter: –
[77] Interpreting the constitution in this manner does not give the court a licence or liberty to conjure up whatever meaning it wishes to attach to the constitutional provision. Byron CJ advised in R v Hughes that –
“Courts, while giving a generous interpretation, must carefully look at the language used so as to give effect to it and not resort to an application of distilled values which would result in divination and not interpretation (see Matadeen v Pointu [1998] 3 LRC 542).”
[78] Thus while the Constitution imposes the obligation on courts to interpret and enforce its provisions, the interpretive analysis must be pursued in context. In this regard, the process of arriving at a meaning does not grant the court the liberty to make the law or to amplify it beyond its intention.
[79] For present purposes, the foregoing principles expose the interpretive tensions at play in this case. For the JLSC and Justice Ventose, section 5(2) (a) (ii) engages an “updating” construction, albeit to varying degrees, in order to ascertain the intention of its framers. Mr. Bristol, on the other hand, advances a more conservative construction. His analysis suggests that the framers approached the matter from a particular perspective prevailing at the time the section was drafted, and that this perspective is readily discernible from the language of the provision itself. Accordingly, the meaning and intention that the framers ascribed to the section are neither obscure nor uncertain and therefore require no clarification or “updating.
My thoughts on interpretation
[80] Having considered the matter in the round and for the reasons to appear below, I must disagree with the construction offered by Mr. Bristol. It might assist to begin with the obvious. The framers of the Constitution did not offer a meaning for the term “advocate” or of the phrase “having so practised” as used in section 5. However, a contextual understanding of what the framers intended might commence by examining the manner in which the Grenada Constitution and specifically section 5 came about. In this regard it is of note that the document which became the Constitution was concluded through a consultative process involving Grenadian political leaders, advisors, British government officials and of particular significance to this discourse, British constitutional lawyers, experts and drafters. Constitutions such as Grenada’s, were as Lord Diplock elucidated in Hinds –
“… negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the United Kingdom.”
[81] For present purposes, it suffices to highlight the fact that the Constitution was drafted by persons skilled in matters concerning the judicial arm of the State. It is therefore logical to conclude, as Mr. Bristol does, that the drafters of section 5 employed the terms “advocate” and “practise as an advocate” in accordance with the meaning those expressions bore in their own understanding at the time the provision was drafted.
I also agree with Mr. Bristol that the deliberate inclusion of the expressions “advocate” and “has so practised” in section 5, and the context in which they are used, was intended to serve a distinct legislative purpose. That purpose is to ensure that any person appointed as a Judge of the Court of Appeal: first, possesses the requisite qualification to practise as an advocate (however the word “advocate” is properly construed); secondly, has actually practised as an advocate (however that activity is properly understood); and thirdly, has so practised for an aggregate period of not less than fifteen years.
A basic history of advocacy.
[82] To determine the meaning the framers intended to ascribe to the language employed in section 5, it might be instructive to examine the historical development of the concept of advocacy and the understanding that the framers would likely have attached to that concept at the time of drafting. I find a useful historical study written by J. H. Baker, published in the Cambridge Law Journal104, which traces the evolution of the professions of counsellors and barristers. In this discourse, I do not propose to recite the detailed historical tracing undertaken by the author. Instead, I shall endeavour to provide a general overview of that evolution so as to form a view as to what the framers of section 5 may have intended.
[83] Baker’s exposition suggests that, in the early development of the legal profession, the distinctions between the respective roles and offices of legal practitioners were not clearly delineated. By the thirteenth century, however, a discernible distinction had developed between attorneys and solicitors, who were primarily responsible for the procedural and administrative conduct of litigation, and counsellors and barristers, who specialized in legal argument, pleading, and advocacy before the courts. Over time, counsellors and barristers came to enjoy considerable prestige, exclusivity, and gentlemanly status. Importantly, before the distinctions between the various branches of the legal profession became clearly established, a single practitioner could advise clients, prepare legal documents, conduct litigation, and appear before the courts to argue cases. By the 13th century however when roles and status began to be definitively drawn, there was the emergence of (1) attorneys who were persons engaged in procedural matters, filing documents, continuing suits, issuing writs and general legal administration. These roles were considered more “mechanical” or ministerial; and, (2) narratores / pleaders who became the professional advocates who argued cases, developed legal reasoning, specialized in pleading and appeared before judges.
[84] Beyond courtroom advocacy, emerged the role of the counsellor in answer to clients seeking advice on such matters as land ownership, conveyancing, contracts, litigation strategy and technical legal drafting. Baker explains that counsellors were intellectual professionals whose role resembled that of physicians in medicine. They were viewed as learned advisers rather than mere legal agents. The counsellor’s role gradually merged with that of the pleader and later evolved into the barrister profession.
[85] The distinctions became firmly established over time. Of interest to our discourse is Baker’s observation that judges were increasingly appointed from the ranks of the pleaders rather than attorneys. A central feature of the developing distinction, Baker expounded, was that the barrister profession deliberately developed customs to differentiate itself socially from attorneys and solicitors. This exclusivity manifested through Inns of Court membership, educational requirements, courtroom privileges, etiquette rules and restrictions on direct dealing with clients. Barristers increasingly portrayed themselves as learned gentlemen, intellectually superior practitioners and members of a quasi-academic profession. Attorneys and solicitors, by contrast, were portrayed as commercial and procedural workers. Baker posited that these distinctions were not purely functional but deeply connected to class and social prestige.
[86] The Inns of Court played an essential a role in the growth of the barrister profession. Baker explains that the Inns served as educational institutions, controlling admission to advocacy and fostering professional identity. By the sixteenth and seventeenth centuries, the Inns had become highly influential in determining who could practise as counsel. With the growing distinctions, barristers gradually monopolized advocacy. Originally, many legal practitioners could appear in court and the distinction between counsel and attorneys was fluid. Over time though, the Inns of Court restricted rights of audience, barristers asserted superiority and solicitors were increasingly excluded from advocacy roles. The courts eventually recognized barristers as the exclusive advocates in superior courts. This led not only to a loss in status for solicitors but somewhat of a relegation of solicitors to the domain of intermediaries instructing counsel, preparing cases, gathering evidence, and managing clients. Barristers became more focused on courtroom argument, legal opinions and appellate advocacy. These distinctions not only featured in the roles and functions of the legal professionals inter se but with the relations between legal professional and clients. Baker viewed this as an important feature of the emerging profession. Whereas initially any legal professional would have interacted directly with the client, with the emerging differentiations, particularly barristers becoming more specialized and focused on advocacy in the superior courts, solicitors took on the role of intermediaries between barristers and client, with barristers relying on the solicitors to prepare and present them with briefs. Baker viewed these divisions as laying the foundation for the modern English legal profession.
[87] Halsbury’s Laws of England put the development of the profession of barrister more succinctly –
“There has been a division of function between advocate (‘barrister’ in modern usage) and attorney or solicitor in the English legal profession, as in the civil law system, since a secular legal profession first emerged in England at the beginning of the thirteenth century. Originally, however, there was nothing to prevent a barrister from soliciting causes or dealing directly with clients as part of his profession, and many barristers did so. However, the practice of removing the barrister from direct contact with the lay client developed over the centuries until it became the ‘almost uniform usage’. In 1888, the Attorney General gave a ruling that a barrister should not act or advise without the intervention of a solicitor in any contentious matter, and the rule was later extended to non-contentious matters.”
[88] Today, the landscape of advocacy has evolved significantly, and contemporary practice is largely shaped by legislation such as the Courts and Legal Services Act 1990 (United Kingdom). Stone’s Justice Manual explains the present position –
“ Solicitors are entitled to conduct litigation in any court. They are also entitled to exercise any right of audience which solicitors had immediately before 7 December 1989, provided that the exercise of that right is in compliance with the Solicitors Code of Conduct 2007. Solicitors are also entitled to exercise additional rights of audience in the higher courts if they have obtained a relevant higher courts advocacy qualification under the Solicitors’ Higher Rights of Audience Regulations 2010, or if they had already acquired a relevant higher courts qualification from another regulator before becoming a solicitor.
Barristers are entitled to exercise rights of audience in any court. In magistrates’ courts, barristers (unless employed by the litigant in question) receive instructions from solicitors or the Crown Prosecution Service. The instructing lawyer will rarely attend court with the barrister since remuneration from public funds seldom covers this. The barrister’s remuneration for publicly funded defence work will be an agreed proportion of the fee payable for representation by a solicitor.”
[89] It appears to me from the foregoing that, by the time section 5 was drafted in the late 1960s or early 1970s, the framers of the Constitution would have understood advocacy principally as the exercise of rights of audience before the courts and the performance of functions incidental thereto. Put simply, the framers intended that the bench be populated by persons who were specially trained and skilled in the craft of presenting cases before the courts—individuals who, at that time, would have been more particularly described as barristers. This stood in contrast to solicitors, legal academics, and even barristers who, though qualified, did not engage in the actual conduct of litigation before the courts.
[90] In my view, this explains why the framers required not only that an appointee be qualified to practise as an advocate, but also that he or she must have actually practised in that capacity for an aggregate period of at least fifteen years. The requirement of actual experience was plainly intended to ensure that those appointed to the bench possessed substantial practical experience in courtroom advocacy and the conduct of legal proceedings, rather than merely holding the formal qualifications necessary for admission to the practice of law.
[91] Mr. Bristol is quite correct, then, to refer to the differences between section 5 and the constitutions of other former British colonies of, for instance Gibraltar and The British Antarctic Territory which constitutions were drafted during the same period as the Grenadian Constitution. In those formulations, recited above, the drafters—who were, in all likelihood, drawn from the same cadre of British legal experts responsible for drafting the Grenadian Constitution—did not stipulate that an appointee must be a trained and skilled advocate. Rather, in those constitutions, the effort was to appoint persons who were merely qualified to practise but there was no emphasis on actual practise.
[92] This differentiation is highly relevant because, if the intention had merely been, as Justice Ventose suggests, to attract the most gifted lawyers irrespective of whether their field of expertise was advocacy (as then understood), the drafters could readily have employed a formulation similar to those adopted in other constitutions drafted during the same period, thereby making that intention explicit. The differentiation also addresses the contention that the meaning of advocacy may be updated to encompass “law-related activities” in the broad sense suggested by Justice Ventose and recited above.
[93] With respect, I consider the meaning advanced by Justice Ventose to extend the concept beyond its proper limits. As I have explained, where a constitutional provision does not carry a clear meaning on its face, a court is entitled to derive that meaning from its context, both internal to the constitution and from such external considerations as we have examined in this discourse, to arrive at the intentions and understanding of its framers. If my approach to the interpretation of the provision is correct, it ought to be apparent that the framers deliberately crafted a provision requiring that appointments to the Court of Appeal be drawn from practising advocates.
[94] Even if one were to adopt an updated understanding of the terms “advocate” and “has so practised” to include those engaged in the preparation and management of litigation, as I discuss below, I cannot see how the framers could ever have intended it to encompass, for example, persons engaged mainly or exclusively in a conveyancing practice or, as Justice Ventose suggests, professors and academics whose principal or sole occupation was teaching or scholarship and who did not practise as advocates. Such professions bear little resemblance to a person who is not only qualified as an advocate but who is also actively engaged in such practice, whatever the precise scope of that practice may be. This distinction is important to bear in mind in the present case. The qualifying requirements of being entitled to practise as an advocate and having so practised must be construed together in order to ascertain the intention of the framer.
[95] Viewed through the foregoing lens, the Malaysian case of Badan Peguam Malaysia v Kerajaan Malaysia may readily be distinguished from the present case. In that case, the provision under consideration stipulated that an applicant for appointment as a Judicial Commissioner must be one who “…ha[d] been an advocate of those courts…” for a period of ten years. Significantly, there was no requirement that the applicant must have actually practised as an advocate during that ten-year period. It is therefore not difficult to understand why the court concluded that a person who was qualified as an advocate, but who had neither practised as such nor held a practising certificate, was nevertheless eligible for appointment. Had the qualification required actual experience as an advocate, the applicant in that case may well have failed to satisfy the requisite threshold, since she neither possessed a practising certificate nor had the necessary experience in the practice of law.
The fusing of the profession and intention
[96] That takes me to the argument that the profession was fused in the OECS. I do not think much turns on this point. The fusing of the profession means that in this region there is not much of the remarkable history of the development of the professions of barristers and solicitors as in the United Kingdom. All that the fusing means is that at some point in our regional courts, it became proper for barristers to do all of what the solicitors do and equally it became proper for solicitors to do what barristers do. The fusing became the blurring or fusing of who can do what. The fusing was not, in my view, a blurring, disassembling or dismantling of what each thing is. Thus where previously the solicitor may have been precluded from doing what the advocate does, the solicitor could now do what the advocate does. The converse also operates in much the same way. The advocate could now do what the solicitor did. More vivid is the combination of roles that permits both professions to exercise a right of audience before the court where previously appearing and making arguments in the court was the sole domain of the advocate (or barrister). And in my view, if one looks at the development of the profession through these lenses, this is one of the most distinctly defining features of advocacy. The fusing did not change the nature of advocacy. For instance, contrary to the argument for the JLSC and Justice Ventose, the fact that the advocate may now reduce his oral arguments to writing or that witnesses are to file their oral testimony by written witness statements does not make advocacy work or its nature a thing that is different to what it always was and in fact remains. Filing written submissions or witness statements are just different ways of conducting advocacy or doing what the advocate does when he or she appears before the court on behalf of the client. But what remain is that the advocate has the right to exercise audience before the court and is so doing.
[97] In the modern age therefore where the profession is fused, for one to determine whether a legal practitioner is an advocate and is so practising, one has to look at the nature of the work that the legal practitioner is producing. If for instance the work of the legal professional is mostly notarial or conveyancing and nothing else or is solely or mainly focused in academia, one hardly can say, without more, that he or she is an advocate who has practised or is practising advocacy. This does not detract from the fact that at present day the legal practitioner who is a conveyancer or academic is endowed with a right, if he or she wishes, to get up from the office and go to the magistrate’s court or to the high court to represent a client or is entitled to engage in litigation management related work.
[98] Even more unhelpful is the notion that since the JLSC has opted to appoint persons who are learned, esteemed and skilled in other areas of the law besides advocacy, that the definition of advocacy has been thereby uplifted or expanded. Applying that meaning to what is written in section 5 and explained in the context of what the framers understood and clearly intended, as I have explained above, in my respectful view, would stretch the definition to the point of almost if not, denuding it of its meaning. I note that the JLSC does not propose or endorse this latter posture and I believe, rightly
1.A settled practice must aid ascertaining the intention of the statute. Settled practice should not rewrite the provision as the judge sees fit.
99] Equally unreliable as an aid to interpretation is the approach of applying the meaning adopted in the instances where judges are appointed either in the United Kingdom or at the Caribbean Court of Justice. Even a cursory examination of the appointing powers in those instances do not bear resemblance to the deliberately crafted language of section 5. The scheme in those instances uses different language and do not aid the meaning that arises from the language in the context as if I have found.
JLSC stance on the framer’s intent advances the exercise
[100] Before marching on from this part of the discourse on intention, I must pause for a moment to delve into the proposed intention raised by the JLSC. I find it compelling and persuasive for a number of reasons.
[101] Asset out above,the JLSC contends that, for the purposes of section 5 ,the concepts of “advocate” and “advocacy” should be understood as encompassing not only the actual presentation of cases before the courts but also broader forms of “litigation management” or “litigation-related” work. By this, I understand the JLSC to refer to the full spectrum of activities involved in the conduct of litigation, from the receipt of a client’s instructions to the preparation and presentation of the case before the court. Such activities may include taking instructions, conducting legal research, preparing pleadings and witness statements, attending to case management matters, researching and drafting interlocutory applications, filing court documents, pursuing avenues of alternative dispute resolution, and, of course, appearing before the court at various stages of the proceedings, including at trial.
[102] The JLSC characterizes this approach as an “updating construction” of the relevant constitutional language. According to the JLSC, such a construction recognises that the concept of advocacy has not remained static but has evolved since the time when the framers drafted section 5. The JLSC argues that to confine the meaning of “advocacy” solely to courtroom appearances would unduly restrict the scope of the provision and render it largely unworkable in the context of modern legal practice. Put another way, the JLSC contends that the purpose underlying section 5 would be exceedingly difficult, if not impossible, to achieve if the term were interpreted in so narrow a fashion.
[103] I agree that for the reasons propounded by the JLSC that the framers could not have intended to constrain the meaning of advocacy in the manner suggested by Mr. Bristol. The JLSC’s position is founded upon a “living instrument” approach to constitutional interpretation, under which the concept of advocacy is not treated as fixed or immutable but as capable of evolving to meet the changing needs and realities of the legal profession and the wider society it serves. In this connection, I recall the observation of Jackson JA in Lilleyman that the words of a constitution are “necessarily general.” His Lordship also admonished that –
“…their full import and true meaning can often only be appreciated when considered as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words change, but the changing circumstances illustrate and illuminate the full import of that meaning.”
[104] Speaking of the concept of the “living instrument” approach to constitutional interpretation albeit in respect of savings clauses and fundamental rights provisions, Lord Hoffman made the following salient and salutary observation in Boyce v AG
–
“Parts of the Constitution, and in particular the fundamental rights provisions of Chapter III, are expressed in general and abstract terms which invite the participation of the judiciary in giving them sufficient flesh to answer concrete questions. The framers of the Constitution would have been aware that they were invoking concepts of liberty such as free speech, fair trials and freedom from cruel punishments which went back to the Enlightenment and beyond. And they would have been aware that sometimes the practical expression of these concepts—what limits on free speech are acceptable, what counts as a fair trial, what is a cruel punishment—had been different in the past and might again be different in the future. But whether they entertained these thoughts or not, the terms in which these provisions of the Constitution are expressed necessarily co-opts future generations of judges to the enterprise of giving life to the abstract statements of fundamental rights. The judges are the mediators between the high generalities of the constitutional text and the messy detail of their application to concrete problems. And the judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not performing a legislative function. They are not doing work of repair by bringing an obsolete text up to date. On the contrary, they are applying the language of these provisions of the Constitution according to their true meaning. The text is a ‘living instrument’ when the terms in which it is expressed, in their constitutional context, invite and require periodic re-examination of its application to contemporary life.” (Bold emphasis mine)
The impact of section 5(3) of the Courts Order on meaning
[105] The applicant who has not had actual experience as an advocate may still present an application if he or she –
(a) “…has been serving in the office of judge of any such court; or
(b) after having become qualified to practise as an advocate in any such court, has been serving in a public office in some part of the Commonwealth the functions of which include ·appearing as an advocate in any such court or in the office of magistrate, or registrar of a court, in some part of the Commonwealth.”
[106] At the hearing of this matter, I asked counsel to consider whether section 5(3) has any impact on meaning. In particular, I asked counsel to consider whether section 5 (3) supported the view that (1) the framers intended that the word “advocate” in section 5(2) (a)(ii) means a persons who has practised before the courts; and (2) the framers deliberately adumbrated the list of persons at section 5(3) as the only instance where a person who has not “so practised” before the courts, may nonetheless be considered as an appointee to the courts. Mr. Bristol, at paragraph 14 of this closing submissions filed on 14th April 2026 considered that this approach to meaning is appropriate.
[107] The JLSC, while agreeing that section 5(3) permits a person who has not “so practised” to present an application to be appointed as judge of the Court of Appeal, disagrees with the view that it has an impact on the nature of the litigation work that now classifies as litigation related work. Put another way, the class of persons to which section 5(2) (a)(ii) applies is not narrowed by the exceptions articulated in section 5(3) to those legal practitioners who appear before the courts.
[108] On this issue, I find considerable soundness in JLSC’s arguments. JLSC suggests that reading section 5 (2)(a) (ii) and 5(3) together does not lead inevitably to the conclusion that the framers meant to confine or restrict the meaning of the phrase “has so practised” to the class of persons who appear before the courts. For instance, it may be proper to conclude that the applicant who sat as a judge (section 5(3)(i)) or a magistrate or registrar or as acting judge would not have been engaged in advocacy in the sense of arguing cases before the court or being involved in “litigation related activities”. Equally, those who may have served in public offices whose functions include appearances before the court like an Attorney General. The entire period of service of the public servant or the judge, acting judge, magistrate and registrar is counted for the purposes of the qualifying period in section 5(2)(a)(ii) notwithstanding the fact that those persons have not “so practised” in the strict sense of appearing before the courts or being engaged in litigation related services. None of these exceptions helps conclusively to decide the nature or scope of advocacy for the purposive of section 5(2)(a)(ii).
My conclusion on interpretation
[109] As I have discussed above, if the framers’ intention was to populate the bench with persons trained and skilled in issues related to litigation, then it could hardly be importing or legislating a different meaning to section 5 to find that, in a contemporary sense, the section embraces not just appearances before the court but all aspects of preparing and presenting a case or cases before the courts. I agree with the JLSC that to argue, as Mr. Bristol does, that advocacy should be viewed only as appearing and arguing claims before the court would put “…undue weight on oral advocacy, which is only one small part of modern litigation.”112 Modern litigation and by extension, advocacy, entails a great deal more than mere appearances. In the face of the advancing breadth and scope of advocacy, limiting its meaning to only those who appear before the court to advocate on behalf of clients would have the chilling effect of restricting the field of eligible applicants to such paltry few as to render the process of appointing judges to the Court of Appeal unproductive.
[110] Moreover, I am of the view that the modern incarnation of advocacy as suggested by the JLSC, would not, to borrow the phraseology used by Lord Hoffman in Boyce, have “… come as a surprise to the framers of the Constitution…” This is because, as demonstrated by our overview of the history of the barrister’s profession, advocates were, prior to the formal separation of the legal professions, engaged in all, if not most, aspects of litigation and litigation-related activities at various stages of the development of advocacy. Equally, the reasoning underlying the fusion of the legal profession within the region, particularly concerning the conduct of advocacy and the persons entitled to undertake it, provides substantial support for the JLSC’s position and is neither inconsistent with nor a departure from the purpose intended by the framers, as I have outlined it.
I would also agree with the JLSC that accepting, as Mr. Bristol asserts, that the concept of advocacy was restricted to persons arguing cases before the court, there is nothing in section 5(2) (a)(ii) and indeed section 5(3) to indicate that the framers would have insisted that section 5(2)(a)(ii) should be applied “…in the same way, regardless of changes in legal practice occurring after its enactment.”
Understandably, there are limits to reading the Constitution with an uplift. The task is to find meaning and not to guess or invent a meaning. We recall Byron CJ’s caution in AG v Grenada Bar Association to the effect that –
“Courts, while giving a generous interpretation, must carefully look at the language used so as to give effect to it and not resort to an application of distilled values which would result in divination and not interpretation.”
Lord Hoffman warned that “The Constitution does not confer upon the judge savague and general power to modernise it.”
More pointedly, his Lordship cautioned against treating the ‘living instrument’ doctrine as licence to ascribe to the Constitution whatever meaning a judge may desire or to import the judge’s own values into the process of constitutional interpretation –
“The ‘living instrument’ principle has its reasons, its logic and its limitations. It is not a magic ingredient which can be stirred into a jurisprudential pot together with ‘international obligations’, ‘generous construction’ and other such phrases, sprinkled with a cherished aphorism or two and brewed up into a potion which will make the Constitution mean something which it obviously does not.”
[115] The foregoing caution is precisely the reason that I do not consider it appropriate to adopt the meaning suggested by Justice Ventose. The learned judge’s method of interpretation would impermissibly extend the definition of advocate in section 5 to include academics, possibly conveyancers, and other legal professionals whose practice has no connection, correlation, or association with advocacy, whether in its historical or contemporary manifestation. Although it may be accepted that advocacy today is not what it was in the 1960s and 1970s when the Constitution was drafted, advocacy has always possessed a distinctive character, and its essential attributes have endured notwithstanding changes in the manner and modalities by which it is practised.
The “has so practised” question.
[116] Having determined the intention of the framers at the time section 5(2) (a)(ii) was drafted, the question that remains is whether the JLSC properly satisfied itself that Justice Ventose met the requirements of section 5 before his appointment to the Court of Appeal? There is, understandably no quarrel with the learned judge’s qualifications as an advocate. Justice Ventose has been called to the Bar of a number of ECSC jurisdictions which qualifies him to practise in those jurisdictions and more specifically to practise as an advocate in the ECSC as a consequence of the fusing of the professions of barristers and solicitors. The more contentious query centers on whether he has so practised as an advocate. This is a question that the JLSC is obliged to answer on these proceedings. As I have stated above, Justice Ventose is under no obligation to satisfy this Court of anything, as section 5 entrusts the JLSC with the responsibility of ensuring that an appointee to the office of Judge of the Court of Appeal satisfies the requirements prescribed by that section.
[117] With respect, my assessment is that the JLSC did not do properly assess thequestion of whether Justice Ventose had so practised as an advocate and that he had done so for the requisite aggregate period of 15 years before it appointed him as a judge of the Court of Appeal. The drafting and use of the words “has so practised” and “… for an aggregate period of 15 years” is deliberate language and demands a positive approach to the question that arises from those words. Therefore, in my opinion, it is JLSC’s duty to obtain – (1) adequate details that the applicant is qualified as an advocate; and (2) information that would indicate that the applicant practised advocacy for an aggregate of 15 years. The evidence discloses the former and not the latter.
Where the question of Justice Ventose’s actual experience as an advocate is concerned, JLSC considered a number of matters which I will address.
Firstly, at paragraph 34 of its 16th February 2026 submissions JLSC points out that “…the description of the work he said he performed, qualifies as practice in advocacy.” The description of the work is set out at paragraphs 35 and 36 which explain that “…since being called to the Bar in St. Lucia in 2007, he had assisted with legal opinions and drafting documents for selected matters which have engaged the courts.” Further description indicates that “… in his later application to the Search Committee to be appointed Chief Justice, Justice Ventose described his post-call professional work as “litigation and litigation management”, and in his letter to the Search Committee dated 30th April 2024 he stated that he had “appeared in court as an advocate” and had “assisted persons involved in proceedings for the resolution of issues arising under law.”
JLSC adds that the foregoing information is underpinned by testimonial from esteemed former Chief Justice Sir Hugh Rawlins which reference states that “…Justice Ventose’s knowledge of the rules of evidence and of court practice and procedure arose, among other things, from his attendance at court in various Caribbean countries.”
[121] None of the foregoing evidence from the JLSC is queried by this court. Infact, I attach the highest regard and credence to all of it. What is graphically absent however is the basis on which JLSC satisfied itself that any of these general assertions were made out in fact. It is my view that JLSC was duty bound to do so. As I have stated above, the language used by the framers is deliberate. The framers took the time to insist that the appointee must be qualified as an advocate and must be shown to have practised as such and be shown to have done so for a determinate period (15 years). This list of criteria is different to the ones in other constitutions where the framers there required applicants who were purely advocates or qualified legal practitioners without more. In the section 5 (2) (a) (ii) formulation, the applicant must be shown to be a qualified advocate who has practical experience as an advocate for 15 years. There is no evidence that was presented to the JLSC to show that Justice Ventose possessed any of the experience expressly stated in the section. Without condescending to an enumeration of the sort of evidence required, it would have been entirely proper of the JLSC to insist that the applicant provide cases in which he practised as an advocate and the years in which he did so. I am hard- pressed to see how the JLSC could satisfy itself that the stipulations of section 5 (2) (a) (ii) (practised as an advocate for 15 years) were met by the applicant without having that sort of material in its possession to assess.
[122] In some respects, JLSC sought to preempt this criticism. See paragraphs 16 and 17 of the affidavit of Jodi Ann Masters Singh, sectary to the JLSC filed herein on 3rd March 2025 where JLSC states that –
“16. While his application does not indicate any litigation work being done in St. Lucia, it does indicate that he engaged in litigation since his calling in Barbados in 2008. Sir Hugh Rawlins indicated that Mr. Ventose acquired a comprehensive knowledge of rules of evidence and of court practice and procedure due, in part, to “his practice in Barbados and attendance in court there”.
17.We understood from his application that since being called to the Barbadian Bar in 2008 he provided litigation support in matters before the courts and did so during the period between his call in that jurisdiction and his appointment as a High Court judge in 2018. After that stint came to an end Mr. Ventose became Dean of the Faculty of Law at UWI up until his appointment as a Justice of Appeal in 2024.”
[123] In this context JLSC submits that –
“It is true that the application before the Commission did not specify the particular litigation work Justice Ventose undertook between 2007 and 2010. However, in his letter dated April 30, 2024, he affirmatively states that since his admission, he performed asks that, on our case, constitute the practice of advocacy, and he identifies only one exception- the period during which he served on the bench.”
[124] With respect to the question of whether the 15 year requirement was met, JLSC explains that –
“We recognise that, although Justice Ventose’s account of his professional experience in his May 2024 letter provides some detail as to the nature of the activities he says constituted practise as an advocate during the sixteen-year period, it is not specific as to when, within that period, he performed each of those activities and to what extent. For example, Justice Ventose does not say whether any of the court appearances or assistance in proceedings took place between 2007 and 2010.”
[125] JLSC accepts that these are factual matters of which it ought to be satisfied. It says that it was so satisfied. Further, the JLSC contends, to the extent that JLSC’s assessment is disputed by Mr. Bristol, that is a factual disputation that the court must resolve “…on the basis of the facts as stated by the defendant, unless there is a good reason to reject that.122” JLSC goes on to elucidate at paragraphs 53 et seq of its 16th February 2026 submissions that the court should consider the 15 year period as one who has offered himself as an advocate for 15 years. To do otherwise, the court would mean –
“…that the résumé of every applicant (or appointed judge) would have to be examined to show that in every single year since being qualified to practise, he or she engaged in litigation before the court at least once. That approach least once. That approach does not reflect how legal practice actually works.”
[126] I have no difficulty with JLSC’s proposition that the disputed facts maybe resolvedon the material that it has presented to this court. However, as I have stated above, the material that was presented by the JLSC does not meet the standard required by section 5. Additionally, I do not accept the suggestion that the requirement of having “so practised” could be met by an advocate who was “…on hazard and offering himself as a barrister to the public at large” as such. I reiterate the point that the framers deliberately used the words “…has so practised” to achieve a certain outcome. It cannot be the case that the object of that terminology could be met by an advocate simply asserting that he or she was “… on hazard and offering himself to the public” as an advocate. It must not only be averred that the legal professional offered him or herself to the public as an advocate but must be shown to have been so utilized.
[127] Interestingly, I note that in the Walshe case presented by JLSC as authority for its proposition, the court looked at constructions of the phrases “…a practising barrister or solicitor of not less than ten years’ standing” and “…a barrister or solicitor who actually practised his profession for not less than ten years”. The former represented the phrase being considered by the court. Based on reasons of statutory context the court in that case arrived at a meaning that did not call for actual practise by the advocate. In this case, section 5(2) (a) (ii) contains language similar to the phrase “…a barrister or solicitor who actually practised his profession for not less than ten years”. For the purposes of section 5 (2) (a) ii) therefore, I have no hesitation in finding that the section stipulates that evidence must be presented of the applicant having actually practised and of he or she having done so for a period or periods amounting to an aggregate of 15 years.
The parties’ quarrels on evidence of experience
[128] The parties expended a great deal of their energy on assessing each of Justice Ventose’s years since his call to the Saint Lucia Bar in 2007 to his elevation to the Court of Appeal in January 2024. I do not believe that the exercise was necessary since I have concluded that the JLSC did not properly satisfy itself that Justice Ventose had practised as an advocate for an aggregate of 15 years (even on JLSC’s expanded view of advocacy).
[129] But even if I look at the limited evidence provided by the parties about Justice Ventose’s actual practical experience, I do not find that he met the requirement of having so practised for an aggregate of 15 years. For instance, JLSC posits in its 16th February 2026 submissions that –
“…We recognise that, although Justice Ventose’s account of his professional experience in his May 2024 letter provides some detail as to the nature of the activities he says constituted practise as an advocate during the sixteen-year period, it is not specific as to when, within that period, he performed each of those activities and to what extent. For example, Justice Ventose does not say whether any of the court appearances or assistance in proceedings took place between 2007 and 2010.”
[130] The JLSC accepts that there may be a basis for excluding this period (2007 to 2010) from the calculation, owing to the limited information available as to whether Justice Ventose actually practised as an advocate, even when assessed by reference to the JLSC’s own understanding of advocacy. In this regard, JLSC proposes that “…the court should not adopt that approach and unless there is specific evidence showing that the Interested Party was unable to offer or perform litigation-related services to the public during the years in question, those years should not be discounted.” As attractive as this proposal may appear, I must repeat, it does not assist in resolving the fundamental question before the court, namely, whether the JLSC complied with section 5(2) (a)(ii) when it appointed Justice Ventose. On this very evidence, the JLSC accepts that it was presented with limited material, and in respect of the period from 2007 to 2010, no information at all, upon which it could properly reach that conclusion. It cannot suffice to assume (as JLSC does) that –
“An attorney may have an active litigation practice but, in a particular year, may simply not receive a brief that led to court hearings. For example, matters may settle before a claim form has been filed or before a hearing is needed.
59.A litigator may be in court almost every day one year and not appear at all the next. In these circumstances, we say that Parliament could not have intended that year in which litigation work was slow or non-existent, or where court appearances were not required for legitimate reasons, should fail to count toward a candidate’s time as a practising advocate. As long as he was “on hazard and offering himself to the public” … the years should not be discounted.”
[131] In my view, if an applicant cannot provide details of the advocacy work he or she undertook during a particular year, or over periods that would amount to 15 years of actual experience as an advocate (even on the JLSC’s updated construction), that deficiency is the applicant’s burden, not the JLSC’s. To reiterate the point. JLSC has a constitutional mandate with a specific practical element. The specificity of that mandate does not allow for speculations or suppositions as to whether or when the advocate may or may not have worked on a case (whether in court or litigation related activities). Rather, the mandate requires positive action to ensure that the advocate “has so practised” as an advocate for the identified period.
Mr. Bristol’s quarrels about experience as an advocate
[132] Mr. Bristol has undertaken an almost forensic scrutiny of the period from Justice Ventose’s call to the Saint Lucia Bar in 2007 to his elevation as Justice of Appeal in 2024. I agree with his view that Justice Ventose did not qualify due to his lack of the requisite advocacy experience (even on JLSC’s interpretation). However I come to that conclusion for the reasons that I have stated above. Nonetheless, I am of the view that I would reach the same conclusion, namely, that the learned judge did not possess the requisite advocacy experience, even if I were to follow the assessment framework proposed by Mr. Bristol. Looking at the only available evidence of the periods during which Justice Ventose could be said to have conducted advocacy (on the updated construction of the word advocacy presented by the JLSC and accepting the stated periods, for the moment, as years of actual experience)), I observe the following periods –
(1) Senior legal adviser in the Attorney General’s Chambers in the Commonwealth of Dominica for the period 2016 to 2017.
This period is subsumed within the period following since they fall within the same time line; (2) Senior Legal Consultant Delany Finisterre, Barbados 2010 – 2018 (8 years).
(3) Senior Legal Consultant Finisterre Attorneys, Barbados 2021 – 2022 (2 years).
[133] The total of the foregoing period amounts to 10 years of advocacy. Section 5(3) of the Courts Order credits the period during which Justice Ventose sat as a High Court Master, High Court Judge and acting Court of Appeal judge to his overall years of experience for the purposes of the years of advocacy required by section 5(2) (a) (ii). Those periods are –
(1) Master of the Eastern Caribbean Supreme Court assigned to Anguilla, Antigua and Barbuda, and the Territory of the Virgin Islands for the period November and December 2016 (2 months);
(2) Judge of the Eastern Caribbean Supreme Court in 2018 and assigned to St. Kitts-Nevis. He served as High Court Judge in St. Kitts – Nevis until 2020 (2 years); and
(3) Acting Justice of Appeal from May to December 2023 (7 months)
[134] I note that there is no evidence that Justice Ventose engaged in advocacy prior to his commencement of service in Barbados in 2008. Consequently, the addition of the credited two years and nine months of judicial service to the ten years of advocacy experience yields an aggregate period of twelve years and nine months, rather than fifteen years.
The Barbados practising certificate issue
[135] Mr. Bristol asks the court to deduct a number of years from the to talperiod that Justice Ventose claims to have practised in the Barbados jurisdiction. Mr. Bristol pleaded and presented copies of the Barbados Legal Profession Act in aid of his submission that in order to practise law in Barbados, thelegal practitioner needs to obtain a practising certificate in that jurisdiction.
[136] These submissions raise questions of the applicability of a foreign law. It by now settled legal principle that, as a general rule, foreign law is treated is a question of fact by our courts. That fact “…must be specifically pleaded by the party relying upon it, and must be proved to the court.” It has also been established that “… the court will not, in general, make its own researches into foreign law.” Accordingly, the party who wishes to rely on foreign law must prove “…that foreign law … by properly qualified witnesses.” Expert evidence is the usual mode of proving foreign law. In Brownlie v FS Cairo (Nile Plaza) LLC, Lord Legatt offered some insight into the modern approach to proving foreign law in court proceedings –
“The old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant foreign law. On some occasions the text may require skilled exegesis of a kind which only a lawyer expert in the foreign system of law can provide. But in other cases it may be sufficient to know what the text says.”
[137] Although His Lordship’s sagacious guidance is not binding on this Court, it carries significant persuasive weight in the circumstances presently before me. No expert testimony was presented with respect to the text of the Barbadian law in question. Nonetheless, with respect, there is nothing in the text of the law before me that calls for any extensive or eloquent exegesis. The terms of the Barbadian law are rather explicit and easily comprehensible. Equally, there is no suggestion that the Barbados Legal Profession Act did not apply at the time in question to the issues under consideration by this court.
[138] Section 10(2) of the Barbados Legal Profession Act, Cap. 370A provides –
[139] The person who wishes to practise law must possess a valid practising certificate in accordance with section 11 91) of the Barbados Act which reads-
“A person who is registered on the Roll and who desires to practise law in any year shall, in the month of January in that year, apply to the Registrar for a certificate, to be called a Practising Certificate; and the Registrar shall, on payment of the annual registration fee, unless that person is exempt from such payment, but subject to section 49, issue to him a Practising Certificate.”
[140] Practising law is defined in section 2 of the Barbados Act to mean –
[141] The definition of practising law contained in section 2 of the Barbados Act is, in my view, sufficiently broad to encompass the JLSC’s assessment that advocacy extends beyond appearances before the courts and includes all forms of “litigation-related activities”. If that assessment is correct, it would follow that, in order to lawfully practise as an advocate in Barbados, Justice Ventose was required to hold a valid practising certificate throughout the period during which he claims to have practised in that jurisdiction. Indeed, the Barbados Act provides that a person who practises law without a valid practising certificate “is not entitled to maintain any action for the recovery of any fee on account of or in relation to any legal business done by him in the course of such practice.” See section 10 (3) of the Barbados Act. That person also commits an offence. Section 11(7) of the Barbados Act reads –
“A person who after the month of January in any year practices law without first obtaining a Practising Certificate is guilty of an offence and liable on summary conviction to a fine of $250 and to a further fine of $25 for every day on which the offence continues after conviction thereof.”
[142] The JLSC and Justice Ventose do no object to the court’s consideration of the Barbados Legal Profession Act. Contrarily, they take the view that the material does not take matters very far.
[143] For the JLSC it is reasoned that –
“…. this material is not particularly probative. Between 2018 and 2020, Justice Ventose served as a High Court Judge in St Kitts, and section 5(3) of the Supreme Court Order expressly provides that time spent in judicial office counts towards the required years of “practice as an advocate.” That period therefore unquestionably qualifies.
48.More importantly, Justice Ventose is called to the Bar in several jurisdictions. Highlighting his lack of a practising certificate in Barbados for a particular period does not establish that he did not legally practise as an advocate in any of the other jurisdictions in which he is admitted.”
[144] I have already addressed the application of the periods during which JusticeVentose served in various judicial capacities as being sufficient for the purposes of section 5(2) (a) (ii) by reason of what is stated in section 5(3) of the Courts Order.
[145] The JLSC is also correct that highlighting a lack of a practising certificate for Barbados does not establish that Justice Ventose did not practise elsewhere. But that is as far as one can speculate. As I have maintained throughout this discourse, there must be positive evidence that Justice Ventose practised as an advocate, and the pacucity of evidence in that regard has already been highlighted hereinabove.
Justice Ventose’s take on the practising certificate issue
[146] Justice Ventose’s position regarding the absence of a practising certificate is that the issue is of no consequence when section 5 is interpreted through the lens of his “law- related activities” approach. I have already expressed my view that the “law-related activities” approach does not accord with the intention of the framers. Accordingly, I do not consider it to advance this aspect of the discussion in any material respect.
Conclusion on the practising certificate issue.
[147] On the issue of the practising certificate, I agree with Mr. Bristol that there is insufficient evidence to satisfy this Court that Justice Ventose was entitled to practise law in Barbados during the period he claims, save for the years 2014 and 2018. Accordingly, even if one were to credit him with having practised as an advocate notwithstanding the evidential deficiencies highlighted above, only those two years can properly be counted, leaving eight years unaccounted for. Deducting those eight years from the claimed ten years of actual experience as an advocate leaves a period of two years. When that period is added to the two years and nine months of judicial service relied upon, the result is that Justice Ventose can be said to have “so practised” as an advocate for a total of four years and nine months, rather than the requisite fifteen year required by section 5(2)(a)(ii).
My conclusion on whether JLSC acted in breach of section 5 (2)(a)(ii)
[148] All in all, I have arrived at the conclusion that the JLSC did not comply with section 5(2)(a) (ii) of the Courts Order when it sought to appoint Justice Ventose as judge of the Court of Appeal on 8th January 2024. The question of what remedies avail this court for the breach now arises. But before venturing into that issue, JLSC and Justice Ventose raise a question about delay. I must say a word about it.
Delay
[149] CPR 56.4 contains the procedural rule on delay –
56.4
(1) In addition to any time limit imposed by any enactment, the judge may refuse to grant relief in any case in which the judge considers that there has been unreasonable delay before making the application.
(2)When considering whether to refuse to grant relief because of delay the judge must consider whether the granting of relief would be likely to –
(a) be detrimental to good administration (detriment); or
(b) cause substantial hardship to or substantially prejudice the rights of any person (hardship).
[150] Where detriment is concerned, the learning is fairlysettled.Lord Walker in Bahamas Hotel Maintenance and Allied Workers Union v Bahamas Hotel Catering and Allied Workers Union and others restated the relevant principles –
“All relief granted by way of judicial review is discretionary, and the principles on which the court’s discretion must be exercised take account of the needs of good public administration. In Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, 749, [1990] 2 All ER 434, [1990] 2 WLR 1320, Lord Goff of Chieveley quoted Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237, 280-281, [1982] 3 All ER 1124, [1982] 3 WLR 1096:
“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. Lord Goff continued:
“I do not consider that it would be wise to attempt to formulate any precise definition or description of what constitutes detriment to good administration. This is because applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another. But it is of importance to observe that section 31(6) [of the Supreme Court Act 1981] recognises that there is an interest in good administration independently of hardship, or prejudice to the rights of third parties, and that the harm suffered by the Applicant by reason of the decision which has been impugned is a matter which can be taken into account by the court when deciding whether or not to exercise its discretion under section 31(6) to refuse the relief sought by the Applicant. In asking the question whether the grant of such relief would be detrimental to good administration, the court is at that stage looking at the interest in good administration independently of matters such as these. In the present context, that interest lies essentially in a regular flow of consistent decisions, made and published with reasonable dispatch; in citizens knowing where they stand, and how they can order their affairs in the light of the relevant decision.”
[151] The arguments concerning delay, including the issues of detriment, hardship, and prejudice, have been set out earlier in this judgment. I agree with the JLSC and Justice Ventose that Mr. Bristol has provided no satisfactory explanation for the delay between April 2024, when the Search Committee first expressed its concerns to the JLSC regarding Justice Ventose’s appointment to the Court of Appeal, and December 2024, when these proceedings were commenced.
TO BE CONTINUED