Friday, February 23, 2018

Timing is everything


Mark Fraser

The Caribbean Court of Justice’s (CCJ) decision in Freddy Oystein Weel examines the considerations the Court will take into account where an Appellant applies for special leave to appeal in circumstances where there has been delay and non-compliance with conditions imposed by the Court of Appeal.

Dr Weel, a dentist, challenged one of the Dental Registration Rules as unconstitutional; that the rule restricted his right to free speech. He was unsuccessful both in the High Court and the Court of Appeal. He obtained permission from the Court of Appeal to make a further appeal to the CCJ. However, two conditions were imposed; namely, a payment into Court of Bds$10,000 as security for legal costs in the appeal, and that he file a list of documents within 90 days from the date he obtained permission to appeal. He filed the list of documents within time, but failed to make the required payment, before the expiry date.

Nearly two years later, the Registrar of the Supreme Court issued a certificate of non-compliance. Dr Weel then applied directly to the CCJ to grant him permission to appear before the Court, by way of a “special leave after rescission” i.e. an appeal by way of special leave after the issuance of a certificate of non-compliance. The Court noted that there must be a “good arguable case”, with a realistic prospect of succeeding and good and substantial reasons for both the non-compliance with the order of the Court of Appeal and for the delay in approaching the CCJ after the expiration of the period for compliance. The CCJ accepted there was a good case but rejected Dr Weel’s “bald assertion” that he was unable to make the required payment as a result of financial difficulty and was unconvinced by the argument that the Registrar’s failure to issue the certificate of non-compliance “promptly” contributed to the delay in making the application. As such, the CCJ dismissed the application seeking leave with costs to be paid to the attorney general and the Dental Council ending almost eight years of litigation.

This summary is intended to assist the Caribbean public in learning more about the work of the CCJ. It is not a formal document of the Court. The judgment of the Court is the only authoritative document and may be found at uploads/2014/01/2014-CCJ-1-AJ.pdf