May 24, 2013

Undue Delay – An Abuse of the process of the Court

Fri May 24, 2013

by Kiady Brown

In the case of Edward v. Attorney General of Guyana et al., the Caribbean Court of Justice (CCJ) affirmed the Guyana Court of Appeal’s decision that constitutional proceedings brought twenty years after the termination of the appellant’s employment constituted unreasonable delay and an abuse of the process of the court.{{more}}

The appellant held the position of Acting Deputy Registrar-General of Births and Deaths. He was charged summarily with accepting $50.00 from a member of the public for supplying two certified extracts from the Register of Births and Deaths, contrary to the Summary Jurisdiction (Offences) Act. However, this charge against the appellant was subsequently dismissed by a magistrate. A few months later the appellant was notified that he had been dismissed by the Public Service Commission. No reason for the dismissal was given.

Almost seven years after the termination of his employment, the appellant sued the Attorney-General and the Public Service Commission in respect of his dismissal. This was the first action. The trial judge dismissed this action on the ground that it was statute- barred. At a re-trial ordered by the Court of Appeal, the judge held that the delay of 61¼2 years in launching the action was unreasonable and an abuse of the process of the court. The court of appeal agreed.

The appellant then commenced a second action under the provisions of the constitution. By that time, it had been almost 20 years since his dismissal.

The CCJ majority held that, generally, to start proceedings to put forward a claim that could and should have been advanced in earlier proceedings is an abuse of process; that there should be finality in litigation.

The majority further held that it should be a potent reminder of the need for expedition in all matters related to the constitution. As such, the absence of a cogent explanation for the delay in bringing the second action amounted to an abuse of the process of the court.

The minority opinion, which agreed that the inordinate delay amounted to an abuse of process, also considered the well-established principle that if some other procedure or remedy is available, it should be resorted to prior to bringing constitutional proceedings, and a failure to do so may be considered an abuse of the process of the court. This minority decision questioned the application of this principle in the Guyanese context.

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 http://chooseavirb.com/ccj/wp-content/uploads/2011/06/CONSOLIDATED-