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Alternative Remedies

Alternative Remedies
A brief description of the remedies under consideration;
These often have investigatory powers, that is, they investigate the complaint made by the
aggrieved and make recommendations based on their findings.
The agency responsible for administering them;
The ombudsman as provided for in the constitution of Guyana Art 191.
The mischief sought to be corrected;
Mainly to help those who may not be financially capable of hiring investigators or going
to litigation. It is free of cost, informal and speedy.
The efficacy of the remedies;
As the powers are only investigatory they do not possess the authority to enforce their
recommendations. Thus he is often referred to as a toothless poodle
The procedure to be used to apply for them;
A brief description of the remedies under consideration;
These are a range of procedures that serve as alternatives to litigation. They include
a. Arbitration - a situation where a private tribunal or private individual is chosen
voluntarily by the parties to a dispute in preference to the official courts, and given the
power to hear and judge their case. Provided for in Guyana’s Arbitration Act Cap
b. Mediation - Provided for by Alternative Dispute Resolution Act 2010 Act No. 24 of
2010: as a structured negotiation process in which the mediator, as a neutral and
independent party, assists the parties to a dispute to achieve their own resolution of the
c. Negotiation – a back-and-forth communication designed to reach an agreement when
you and the other side have some .interests that are shared and others that are opposed.'
The agency responsible for administering them;
d. Arbitration – usually a retired judge
e. Mediation - Mediation Centre in Guyana located in the compound of the High Court.
f. Negotiation – usually persons can negotiate between themselves
The mischief sought to be corrected;
Avoidance of the adversarial nature of the court and preserve relationships
The efficacy of the remedies;
g. Arbitration – decision is final and binding. However, in some instances the cost can
be higher than that of the court. But the time in which the matter is dealt with is shorter.
h. Mediation – parties are able to come to their own resolution to the dispute and preserve
i. Negotiation – can be basically free once you and the person sit and iron out matters
and decide what it is you want exactly.
The procedure to be used to apply for them;
Remedies that have been introduced to supplement remedies available at common law and
equity due to increasing and oppressive social, political and economic factors for which
special intervention is required. These include:
A brief description of the remedies under consideration;
a. Unfair Dismissal: a dismissal that is considered "harsh, unjust or unreasonable”. S. 8 of
TEPSA provides a list of dismissals that would be considered unfair.
b. Equal Rights Act Cap 38:01 – An act to ensure equality between men and women in
the work place
c. Prevention of Discrimination Act Cap. 99:09 – an act to prevent discrimination in the
employment and recruitment for employment
The agency responsible for administering them;
d. Unfair Dismissal – High Court
e. Equal Rights Act Cap 38:01 – High Court
f. Prevention of Discrimination Act Cap. 99:09 – High Court
The mischief sought to be corrected;
g. Unfair Dismissal: The right to claim unfair dismissal was introduced because the
common law did not provide adequate protection against arbitrary terminations of
employment and also in an attempt to reduce the number of strikes over dismissals.
h. Equal Rights Act Cap 38:01 – An act to ensure equality between men and women in
the work place
i. Prevention of Discrimination Act Cap. 99:08 – an act to prevent discrimination in the
employment and recruitment for employment –
The efficacy of the remedies;
Fines and prison sentences are imposed under equal rights. Additionally you can reinstated
if you so desire under the prevention of discrimination act. Unfair dismissal you can get
compensation for both direct and consequential lost.
The procedure to be used to apply for them;
Application for relief
A brief description of the remedies under consideration;
Remedies to afford employers of the state and its agencies relief where their
employers have acted in contradiction to the statute giving them power. These
a. Constitutional Redress:
b. Application for Judicial Review
The agency responsible for administering them;
High court
The mischief sought to be corrected;
a critical avenue for citizens to advance their rights in circumstances where they may
not have otherwise had a remedy.
The efficacy of the remedies;
Protection of fundamental rights and freedom.
Under judicial review the prerogative orders of certiorari and mandamus can be applied
for. Certiorari is writ that a superior appellate court issues in its discretion to an inferior
court, ordering it to produce a certified record of a particular case it has tried, in order
to determine whether any irregularities or errors occurred that justify review of the case.
Mandamus is a writ which orders a public agency or governmental body to perform
an act required by law when it has neglected or refused to do so.
The procedure to be used to apply for them;
Application must be made to the court for judicial review.
5. Law of Treaties – the CSME - can be granted special leave under article 222
entitled Locus Standi of Private Entities.
The CSME has created a regime within the Caribbean region to promote trade and
investment among its members by freeing trade restrictions and creating a system and
a court to settle disputes between the parties. That court is the Caribbean Court of
Justice in its original jurisdiction and the rules of trade are governed by the CSME itself.
There are circumstances in which members of one state could not have had recourse for
the infractions of members of another state unless they involved the limitations of
private international law for redress. However, the Treaty provisions now allow private
individuals in some cases, to bring matters before the court where their own
governments have refused to do so. The court is entitled to award damages and other
remedies in an evolving jurisprudence: Hummingbird Rice Mills Limited v
Suriname community
In addition to governing trade relations, the CSME also regulates the free movement of
CARICOM nationals from one CARICOM nation to the other which involves how they
should be treated at the port of entries. If in contravention of the treaty through their
agents, the state can be taken before the court: Shanique Myrie V The state of Barbados
Other remedies which reflect the nature of common law relief as acting in rem are:
exercise of a lien on goods which are in the possession of a wronged party;
-parked vehicle
applying to the court by a particular writ of action
A system of rules enforced by the Chancellor to alleviate on moral grounds, technical
injustices of the common law. In modem law, equitable remedies can still be granted
or refused as the court in its discretion sees fit, having regard to the requirements of the
Some equitable remedies that have been developed over the years are:
Specific performance;
a. Interim – an injunction restraining someone from doing something in order
to maintain the status quo pending a final decision of the court. Usually is
granted based on the balance of convenience.
b. Perpetual – a final injunction and are such as form part of the decree made
upon the hearing upon the merits.
c. mandatory - an injunction entered at the conclusion of an equity case
compelling the defendant to do some positive act or to cease to do something
he has done, thereby compelling him in effect to undo it
a. the Anton Piller - a court order that provides the right to search
premises and seize evidence without prior warning. This prevents
destruction of relevant evidence, particularly in cases of alleged
trademark, copyright or patent infringements.
b. Mareva - a court order freezing a debtor's assets to prevent them
being taken abroad
Accounts - most commonly used in cases of breach of fiduciary duty. It is an action
taken against a defendant to recover the profits taken as a result of the breach of duty,
in order to prevent unjust enrichment. In conducting an account of profits, the plaintiff
is treated as if they were conducting the business of the defendant, and made those
profits which were attributable to the defendant's wrongful actions.
Tracing - a process by which a claimant demonstrates what has happened to his
property, identifies its proceeds and the persons who have handled or received them,
and justifies his claim that the proceeds can properly be regarded as representing his
Declaratory Relief - ask a court to conclusively rule on and affirm the rights, duties,
or obligations of one or more parties in a civil dispute
Rescission - Rescission is the unwinding of a transaction. This is done to bring the
parties, as far as possible, back to the position in which they were before they entered
into a contract
Rectification - a remedy whereby a court orders a change in a written document to
reflect what it ought to have said in the first place.
Restitution - restore a person to the position they would have been in if not for the
improper action of another – if I contracted you to paint my walls in red but you painted
it in blue I can possibly get a court order to have you repaint it in the colour I wanted at
your expense.
Damages awarded by a court in its equitable jurisdiction when
damages not available at common law
Equity is said to act in personam while common law acted in rem.
It exercised its jurisdiction over the person and could command the person to
act in a particular way or to refrain from acting in such a way.
Further, it had wider coercive powers on the person than common law because
where common law could impound or forfeit the property of the individual,
equity could imprison the individual for failure to observe its orders.
There may be times when none of the above remedies may be effectual because of the
circumstances of the client and the lack of maturity of the remedy itself within a particular
environment or context.
Perhaps because of the ineffectiveness of our laws and legal system, we have witnessed
throughout the Caribbean a new form of remedy gaining traction outside of the traditional
This takes the form of either individual or group protests against a perceived wrong which
galvanises public support and often results in some beneficial results. Such action has
manifested itself in:
Sharma’s the voice of the people show.
As Caribbean people become more politically self-aware, we may develop to the stage
where political action as a means of solving a problem becomes more prevalent. Extreme
forms of this can be seen in public protests. However, as lawyers, we should put to our
clients another option of acting through their Member of Parliament.
Consider the role of the MP in representing all of his constituency and the effects of him
raising in Parliament issues concerning a particular matter which may involve harmful
governmental action to one of his constituency members which may also be unlawful.
Consider the tools at his disposal such as making a statement, posing a question to the
government for investigation and reporting to the Parliament. Can these be effective tools
if they were properly utilised