Caribbean Law: The Privy Council v. The Caribbean Court of Justice

In recent years the Caribbean has seen a number of high profile cases find a final resolution far from home in the UK’s Privy Council (PC). However, with the rise in the past two decades of the Caribbean Court of Justice (CCJ) as an alternative to the PC, there’s renewed debate about the appropriateness of a London-based court having the final say on Caribbean legal matters. That’s why it’s a good time to review the state of play between the PC and CCJ. 

The CCJ Today

Many in the Caribbean family will read of the CCJ with a good knowledge of what it does but, given the relative newness of the court’s establishment in 2001, and the role it occupies as an original jurisdiction and an appellate jurisdiction, a brief recap is useful.

In its original jurisdiction, the CCJ typically hears cases brought before it that concern matters under the Revised Treaty of Chaguaramas, the 1973 document that established the Caricom Community and Common Market, a precursor to today’s CARICOM. Originally established by Barbados, Guyana, Jamaica and Trinidad and Tobago, the CCJ offered these four nations (who all won independence from the UK in the 1960s) a path to grow a stronger regional community and identity, with the CCJ serving as their judicial cornerstone.

The CCJ also serves as a court of last resort; the last avenue of appeal for criminal and civil matters for those in member nations — currently Barbados, Belize, Dominica and Guyana but with a number of others such as the Bahamas and Jamaica having long signalled an interest in joining. It’s a recognition by member states that the CCJ is a better fit for their modern nations than the UK-based PC.

Holding Court: Why the CCJ Matters

Like any group or sector of a society, the legal community is one that can be burdened by excess work, a lack of resources and even human errors that all hinder the process. So while theoretically a right to speedy justice may exist, in reality many significant cases will require 12 to 18 months, if not much longer, to arrive at something bearing a final resolution in court. 

In this already strained system, a local appeal to the PC afar adds a ton of new challenges, asking parties to a dispute to pack up their claims and traverse 4,500 miles to London to seek a final outcome. In doing so, the expenses of litigation can be compounded by travel costs, accommodation costs and the need to hire local lawyers in London who have expertise in the PC’s processes.

It’s true that any parties who have the funds to pursue matters all the way through to the PC may already have substantial resources and little concern about comparatively small legal expenses but, even so, this can create an issue in and of itself. Despite the aspiration for courts to deliver fair and equal justice for all, wealthy parties recognise that their odds for a favourable outcome against a party with less money will improve the longer they go on, and the more they seek to financially strain their opposition. With this dynamic as it stands, the push for a stronger CCJ is a compelling one.

Local Law and Local Outcomes

The real strength of the CCJ is visible in the landmark cases it has ruled on, and it also has a key role in developing a new regional identity. In cases like LOP Investments Ltd v. Demerara Bank Ltd, and Atlantic Corporation Ltd v. Development Finance Corporation, the CCJ has reinforced contemporary practices in commercial business. It delivered noted precedents via Barbados in Hope v. Rodney, and Colby v. Felix Enterprises that have brought clarity to contract disputes in conveyancing matters; and in Marin v. Attorney General of Belize it ruled on the extent to which civil remedies can be pursued against politicians who have acted corruptly, and who would usually be subject to criminal charges.

These are cases that are not only consequential to member nations, but have served to show the gulf between the local remedies available within the CCJ and the challenges of retaining the PC which, after all, was envisioned to be the last word on the common law at a time when British law and culture reigned across the region, and much of the world. Now, that’s no longer the case and, as shown by cases like the Turks and Caicos with Airbnb in 2017, and Trinidad and Tobago with the death penalty matter of Jay Chandler, irrespective of whatever outcome is found at the PC, for many people in the Caribbean family the idea of a regional matter of justice being decided once and for all far from local shores is nowadays increasingly unpalatable.

The issue with inefficiency is that it cuts both ways. The UK judiciary has been known to gripe about its involvement in Caribbean matters, feeling that its role is no longer one it can best do, or indeed should do, given the passage of time.

Any Reason to Keep the Privy Privileged?

Considering the number of Caribbean nations that have begun a push towards utilising the CCJ, the absence of others doing so could prove a disadvantage to all, but especially to nations who do not turn to it. This is because while there are many factors that can flow into a company’s decision surrounding where to headquarter and why, each one domiciles not only with a view to maximising advantages but also to limiting liabilities. The CCJ’s stated aspirations are to provide equitable access for those who appear before it with limited resources and money.

Some businesses could see the ability to delay and forestall as an advantage but, for most businesses that are start-ups, new companies, and otherwise seeking to grow in the market, litigation that can result in months of delays, expense and a cloud hanging over their business is totally undesirable.

The Identity Factor

The rise of the CCJ is not just a story of legal convenience, it’s also one of identity. Other young nations like Australia and New Zealand abolished their links to the PC not to simply reject Britain but to acknowledge that their future required recognition of their distinctive identities. The same is being seen in the Caribbean with the greater adoption of the CCJ. The story of the CCJ is ultimately about Caribbean nations affirming they have the capacity to build their own identities as individual nations, and collectively as a regional community. 

Legal scholars will argue back and forth about the merits of cases in the CCJ, but the merit of the CCJ itself, rising as a presence in this region, is undoubtedly a terrific development, and one to watch with interest as more nations look to creating a greater role for this court.