Timing is everything

Fri, Jun 06, 2014

Freddy Oystein Weel v the Attorney General of Barbados and the General Dental Council [2014] CCJ 1 (AJ)

by Odwin Trenton, Hugh Wooding Law School

The Caribbean Court of Justice’s (CCJ) decision in Freddy Oystein Weel examines the considerations that 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.{{more}}

Dr Weel, a Dentist, challenged one of the Dental Registration Rules as unconstitutional. He alleged that the rule restricted his right to free speech. He was unsuccessful both in the High Court and the Court of Appeal. Dr Weel 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 $10,000 as security for legal costs in the appeal, and that he file a list of documents within ninety (90) days from the date he obtained permission to appeal. Dr Weel 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 procedure referred to as ‘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 applications for special leave after rescission are governed by the test for all ordinary applications for special leave, that is, there must be a ‘good arguable case’, with a realistic prospect of succeeding. There must also be 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 was prepared to accept that the test for ordinary special leave was satisfied but Dr Weel was unable to meet the other requirements.

The CCJ rejected Dr. Weel’s ‘bald assertion’ that he was unable to make the required payment as a result of financial difficulty. The Court 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.