VIEWPOINT: Time for Leapfrog Appeals to Caribbean Court of Justice

Last Updated on Friday, 10 March 2023, 7:00 by Denis Chabrol

by Attorney-at-Law Brenden Glasford

In 2018 as a result of the no confidence motion, matters of great legal and political significance were initiated. I wish to talk about the ripple effects in the legal realm caused by the court matters filed in the wake of the no confidence motion.

Litigation relating to the events which took place in Parliament on 21 December 2018 was filed on 8 January 2019 and a written decision was delivered by the High Court on 31 January 2019. The case took 23 days to be decided, which is quite an extraordinary feat for Guyana.

Then an appeal was filed on 24 February 2019 and the Court of Appeal gave its written decisions on 22 March 2019. Again, in less than 30 days a decision was given, this is far from the norm in Guyana.

Since the introduction of the Civil Procedure Rules and case management systems in 2016, the time of High Court matters has decreased. Appeal matters can still take years, for an appeal to come to a final written decision. In matters of public and constitutional importance, finality is paramount. Guyana would benefit from change which would see final outcome of litigation sooner than is currently the case.

The no confidence litigation showed what is possible when a case is of critical importance to the interest of the society. At the time, the Courts and the lawyers knew that the whole society was waiting with bated breath the hear the determination of the matter.

Leapfrog Appeals

I wish to raise the concept of leapfrog appeals. Such appeals would significantly reduce the timeframe of constitutional matters within Guyana. The length of time which litigation is before some Courts has been reduced. However, litigation with national consequences should be determined in the shortest time possible. It is my opinion that leapfrog appeals can reduce litigation time for matters of constitutional and national importance.

Lifecycle of Constitutional matters

Before outlining the details of leapfrog appeals, consider the lifecycle of Constitutional litigation in Guyana. Constitutional matters start in the High Court before a single judge. Once that decision is given a party can choose to appeal. Depending on the originating process used to institute the litigation, it may be put before two judges of the High Court sitting as the Full Court or it may go to the Court of Appeal of Guyana. It may sometimes be appealed to the Caribbean Court of Justice. Therefore, at the very least, the traditional appellate process puts constitutional litigation before 3 courts. Sometimes it can be heard by 4 courts before a final decision can be delivered. This equates to months on the shorter end, and years on the longer end.

Leapfrogging in essence

The leapfrog appeal would allow litigants who wished to appeal a decision of the High Court to go straight to the final appeal court which in our case is the Caribbean Court of Justice.

United Kingdom Leapfrog provisions

The provisions in the Administration of Justice Act allows for leapfrog appeals. Litigants in the United Kingdom, after a decision by the High Court, can then seek permission of the High Court to bring the litigation straight to their apex Court.

Value of Leapfrogging

The value of a leapfrog appeal in constitutional litigation where time to a final decision is of the essence would be an invaluable tool in helping the wheels of justice grind more swiftly.

How can leapfrog appeals become a reality?

Leapfrog appeals can only be breathed life through passage of law. The first option is for a bill to be presented and passed in Parliament which makes provision for leapfrog appeals.

The second option is for a bill to be passed to amend an existing act which would add provisions to address leapfrog appeals.

The second option would more appropriate since there would also need to be amendments to the High Court Act, the Court of Appeal Act and the Caribbean Court of Justice Act to make the subject of this article a reality. Whichever method is chosen, the law must set out in plain terms that if a litigant wishes to engage in a leapfrog appeal, the leave of the Court must be sought to take the matter straight to the Caribbean Court of Justice rather than the traditional route.

Appropriateness and Application

The question may have crossed your mind, why are you suggesting limiting leapfrog appeals to only constitutional cases and not to every matter litigated before the Court? Not every matter would be appropriate for a leapfrog appeal. It may be that even some Constitutional matters may be inappropriate for the leapfrog appeal. The determining factor in my opinion would be whether the case has significant factual issues in dispute. If a case does then it may benefit from going through the traditional appeal process, where it has the opportunity if necessary to have fresh evidence adduced in the lower appellate courts.

Final words

It was reported in the local media that the Attorney General is planning to pilot legislative provisions which will increase the compliment of Appeal Court Justices from a maximum of 5 to a maximum of 9. Perhaps leapfrog appeals could be added to the legislative agenda.