THE Caribbean Court of Justice (CCJ) on Wednesday dismissed an appeal by the Attorney General (AG) of Guyana in the $446M contractual dispute between the government and Dipcon Engineering Limited.

Back in March, the AG filed a Notice of Appeal to the Court of Appeal of Guyana requesting leave to appeal the decision of Justice Rishi Persaud at the Caribbean Court of Justice (CCJ) in the case of Attorney General of Guyana and Dipcon Engineering.

Justice Persaud had ruled that Dipcon recover from the Government of Guyana the sum of US$665,032.17 as monies due to the engineering company for road-building and construction works undertaken for and at the request of the government, along with the sum of US$1,563,368.50 for increased costs incurred by Dipcon at the request of the government in the course of undertaking the aforementioned work.

The engineering company also requested a six per cent per annum interest from February 10, 2009 to October 21, 2015 and thereafter at a rate of four per cent per annum until fully paid. It was also ordered that the government pay Dipcon costs to the tune of $1,200,000 along with a stay of execution for six weeks from the date of the ruling. Dipcon took the government to court in 2009, while the People’s Progressive Party/ Civic (PPP/C) was in government. However, judgment was handed down in October 2015.

The AG had sought a stay of execution of the judgment of Justice Persaud pending the determination of the appeal and any other order that the Court may deem necessary, including costs. In his affidavit in support of the application for leave to appeal to the CCJ, Williams said that he was unaware that the previous attorney general had laid over a court order for payment of $400M with the Minister of Finance in January 2016.

However, the CCJ in its ruling dismissed the appeal against the refusal of the Court of Appeal to enlarge the time and costs that were awarded to the respondent at a rate agreed by the parties of basic costs. It was also determined by the court that the application for a stay of enforcement of the judgment that had been made in the Court of Appeal fell away and the judgment which had been delivered more than two years ago could be enforced.

The Court of Appeal had refused an application made by the AG to extend the time within which to appeal a judgment of the High Court, which was made after more than six months had elapsed after the time prescribed by statute. It was after that refusal by the Court of Appeal that the AG sought and was granted leave to appeal to the CCJ as of right under section 6(a) of the Caribbean Court of Justice Act, Cap. 3:07. That as-of-right appeal to the CCJ was on the grounds that the Court of Appeal improperly exercised its discretion in not finding that there were good and substantial reasons for its delay in filing the appeal, and the court did not properly weigh the length of time and reasons for the delay against the potential merits of the appeal.

However, the CCJ has ruled that the appeal touches and concerns a procedural issue and does not fall within the ambit of Section 6 of the CCJ Act. In fact, the Court said Section 6 does not give a right of appeal against the Court of Appeal’s refusal to enlarge time for appealing and that the appropriate recourse in such a situation is to apply to the CCJ for special leave to appeal pursuant to section 8 of the CCJ Act. “No such application was made in this case,” a summary of the judgment stated. Additionally, the court noted that the AG would also need to apply for an extension of time to apply for special leave, since Rule 10.12 of the CCJ (Appellate Jurisdiction) Rules 2017 requires an application for special leave to be made within 42 days of the date of the judgment from which leave to appeal is sought.

“In the absence of acceptable justification for failing to file these applications, the Court concluded that it had no jurisdiction to allow the State to appeal against the Court of Appeal’s refusal to grant an extension of time,” the summary stated.
Notwithstanding that, the Court acknowledged that it may, in a proper case, grant an extension of time to comply with the rules to avert a clear miscarriage of justice.

“It was a serious question in this case whether, as a matter of justice, the Court may or should consider granting an extension of time when there was no out-of-time application for special leave before it.” The AG contended that the reason for failing to appeal in time the High Court’s decision was due to the fact that private counsel had conducted the case under the previous administration, but when the government changed in May 2015, the new AG and staff were unaware of the case of the judgment.

The AG in his appeal to the CCJ alleged that the Court of Appeal did not properly consider the reasons for the delay in filing the appeal and the potential merits of the case. “The Court observed that, in all the circumstances, the State had failed to satisfy the most basic standard of care in dealing with the case and its reasons for failing to appeal in time were unacceptable,” the summary stated.

As a result, the Court stated that on an application for extension of time to make an application for special leave, an applicant must show more than a realistic prospect of success; it must show that there would be a miscarriage of justice if the appeal were not heard.

“In this case, the appellant’s arguments as to the merits were that the judge failed to give proper weight to various aspects of the evidence. The case concerned the respondent’s entitlement to be paid two sums of money; one for extra works and the other for escalations in the price of the materials for doing the work,” the court said, noting that the underlying issue was whether the terms of the contract entitled the respondent to recover the sums it claimed on these accounts and which the trial judge awarded.

The court, presided over by President of the CCJ, Sir Dennis Byron, and Justices David Hayton, and Denys Barrow noted that the apparent miscarriage of justice must clearly appear and must not be speculative and as such the AG’s contention failed to meet this standard.