KINGSTON, Jamaica — Two Jamaican lawyers have expressed concerns that the Privy Council, as Jamaica’s final court of appeal, is inaccessible to the average Jamaican due to prohibitive costs.

Managing partner of Guyah Tolan & Associates, Terri-Ann Guyah Tolan, argues that only individuals of high means can afford to access the Privy Council, effectively denying the majority of litigants justice.

Guyah Tolan’s opinion contributes to the national Privy Council vs Caribbean Court of Justice (CCJ) debate, which has come to the forefront since Prime Minister Andrew Holness signalled his intentions to remove the King of Great Britain as the head of state of Jamaica and turn the country into a republic.

While the debate has mostly centred on the integrity of both courts, for Guyah Tolan, the expenses are a major factor.

“Costs are prohibitive, simply put, unless you are well-off, you cannot access the halls of the Privy Council. So even though there may be distrust in our local-based court, at least a larger percentage will have a fighting chance at justice with the CCJ rather than being effectively barred on account of financial deficiencies,” she shared with Observer Online.

The experienced litigation attorney, whose firm has appeared before the Privy Council, provided a breakdown of costs associated with an appeal at that level:

• Application for permission to appeal fees can range from $29,790 to $198,602, depending on the value of the case, simply to lodge the application. For clarity, if you did not receive permission to appeal from the Court of Appeal in Jamaica, then you would apply for permission to appeal unless your case is one where there is a right of appeal, which applies in certain cases.
• Administrative costs can vary as the required documentation to support the application must be submitted in hardcopy as well as electronically in the specific format acceptable to the Privy Council. Depending on the volume, the cost will vary for printing, bundling, and shipping. Guyah Tolan cited a case in which the documentation was over 2,000 pages, and the administrative and courier fees amounted to approximately $400,000.
• Local attorney fees and fees for external counsel at the appeal stage vary based on the nature of the appeal. It is customary and advised to engage external counsel in the UK. This is different from the fees payable to the Jamaican counsel, which includes a senior counsel and a junior counsel and is assessed based on the rates charged in Jamaica. To save costs, Guyah Tolan shared that her firm undertook the immense task of not engaging external UK counsel but said that still proved to be costly.
• There is also the travel to London, England, for the appellants and their counsel, for which a UK visa must be obtained costing over $30,000 per person.
• Flight expenses can be close to $350,000 per person.
• Accommodation expenses can range between $62,000 and $202,000 per night.
• Provision has to be made for transportation within the UK and per diem where the engagement permits.
• If you lose the appeal, you have to pay the costs of the other side, which are assessed based on the above circumstances.

While she has yet to appear before the CCJ, Guyah Tolan says, “I would imagine that the travel expenses would be significantly less. No visa is required, external counsel would not be necessary, and hearings can be done from the home country because the CCJ can come to Jamaica. That’s a significant reduction in cost.”

Guyah Tolan & Associates specializes in commercial and corporate law, including real estate, mergers and acquisitions, business contracts, employment disputes, and all types of commercial transactions and litigation.

The senior attorney, who is in her 11th year practising law, said she believes Jamaica will need to bury the last remnants of colonialism and build its own jurisprudence in the Caribbean but still questioned the country’s readiness.

“Are we there yet? Is the live question, especially given the public perception that a Caribbean-based final appellate court comprising of our peers is at risk of partiality, distrust, and political influence? Given the recent Kartel appeal, this has certainly brought back into focus and discussion those sentiments which one cannot simply put on blinkers and ignore,” Guyah Tolan said.

Her associate, Aisha Thomas, shared similar sentiments that Privy Council costs deny citizens fair access to all levels of the courts.

“Imagine being denied a fighting chance for justice simply because you cannot afford it. It is essential to any system that citizens have the ability to access all levels of the courts that have jurisdiction over its legal system,” Thomas told Observer Online.

Thomas, who has been at the bar for four years, stressed that access to justice is now widely recognised as a human right and a fundamental principle of the rule of law.

“Our legal system has a hierarchy of courts, each one higher than the other and ultimately leading to the final appellate court, which is the Privy Council. It is only after accessing this court that you have completely exhausted all legal avenues available to you in your fight for justice,” she said.

Thomas continued, “It should not be that we operate in a legal system where our final appeal court and essentially our last stop for justice is one that is so remote, in both distance and experiences, that only a handful of our citizens are able to access it. This is disadvantageous to citizens of a lower socio-economic background and it is something that needs to be addressed. Ultimately, I would like to see a final appeal court that is far more within reach geographically and financially for all Jamaicans.”

She joined her senior attorney in noting that with the Trinidad and Tobago-based CCJ as the final court, several costs will be minimised.

A final Court Of Appeal is a court which hears appeals against the decisions of other courts. Its decisions cannot be challenged in any other court.