Abshire Bodden The Executors of the Estate of Harold Bodden (Namely Gene Thompson and Harold Wright) Appellants v The National Roads Authority Acting by The Director of Lands and Survey Respondent The National Roads Authority Acting by The Director of Lands and Survey Appellants v Abshire Bodden The Executors of the Estate of Harold Bodden (Namely Gene Thompson and Harold Wright) Respondents

• Jurisdiction: Cayman Islands
• Judge: Ground JA,Sir Richard Ground,Chadwick P
• Judgment Date: 25 April 2013
• Court: Court of Appeal (Cayman Islands)
• Docket Number: CICA 3 of 2013 CICA 10 of 2012 G0426/2011
• Date: 25 April 2013

Between:

Abshire Bodden The Executors of the Estate of Harold Bodden (Namely Gene Thompson and Harold Wright)

Appellants

and

The National Roads Authority Acting by The Director of Lands And Survey

Respondent

Between:

The National Roads Authority Acting by The Director Of Lands And Survey

Appellants

and

Abshire Bodden The Executors of the Estate of Harold Bodden (Namely Gene Thompson and Harold Wright)

Respondents

[2013] CICA J0412-1

Before:

The Right Hon Sir John Chadwick, President

The Hon Abdulai Conteh, Justice of Appeal

The Hon Sir Richard Ground, Justice of Appeal

CICA 3 of 2013 G0426/2011 CICA 10 of 2012 G0426/2011

IN THE CAYMAN ISLANDS COURT OF APPEAL

Sir Richard Ground

, Justice of Appeal

INTRODUCTION

1 This is the judgment of the Court. These appeals arise out of interlocutory rulings by Smellie CJ given in the course of an appeal to the Grand Court from an assessment of compensation by the Roads Assessment Committee (“the RAC”). The RAC is the tribunal established by section 7 of the Roads Law (“the Law”) to determine disputes regarding the compensation to be paid to the owners of land which has been compulsorily acquired for road purposes. An appeal lies from such an assessment to the Grand Court pursuant to paragraph 8 of the Second Schedule to the Law. In this case the RAC made an assessment in favour of the owners of Block 28C parcel 1 (“the claimants”). The National Roads Authority (“the NRA”), which, as the statutory body charged with the construction and development of public roads, was the acquiring authority, lodged an appeal from that. Pending the hearing of the appeal the parties made crossapplications: the NRA applying for a stay of the award pending appeal, and the claimants for the immediate payment of the sum awarded. Those summonses came before the learned Chief Justice in the Grand Court on 26 January 2012. On 27 February 2012 the Chief Justice delivered a written ruling granting a stay, on condition of payment of a sum in respect of the claimants' costs. Although those orders are not appealed by either side, in the course of his ruling the Chief Justice made findings as to the nature, extent and mode of hearing of such an appeal, and the claimants seek to challenge those. That challenge is the subject of appeal No. 3 of 2013. The NRA, while not disputing the order for payment of a sum in respect of costs as a condition of the stay, seek to challenge the basis on which that sum was assessed, and that is the subject of appeal No. 10 of 20121. We heard both appeals sequentially, starting with appeal No. 3 of 2013, as they arise out of the same written decision, and for the same reason will deal with them together, in that order, in this judgment.

2 The substantive appeal to the Grand Court now stands adjourned until the decision of this Court on this appeal. The actual issues on that appeal are not before us, and we express no view upon them.

THE BACKGROUND

3 The underlying facts are that the NRA was proceeding to acquire compulsorily 3.31 acres of land forming part of Block 28C, Parcel 12 for the purpose of extending the East-West Arterial Highway. At the material time the land was owned by the claimants, Harold Bodden (who has since died) and his brother Abshire Bodden, as tenants in common. The NRA took possession of the land in March 2007, and the section of the new highway built on it is now open to the public. However, the NRA and the claimants were unable to reach agreement regarding compensation, and in November 2009 the claimants referred their claim to the RAC. Before the RAC, the NRA argued that no compensation was payable to the claimants because the property had previously enjoyed no road access and the new highway had provided it with such access thereby increasing its value by more than the value of any damage. The claimants on the other hand contended that the property did have road access via a prescriptive easement and therefore that the new highway had not increased its value. There was an evidential hearing before the RAC on that issue, and both parties also called expert evidence in relation to the value of the acquired land, the diminution in the value of the retained land caused by its severance from the land taken, and the injurious affects of the new highway.

4 The RAC issued a decision in favour of the claimants on 29 September 2011. It found that the property had benefitted from a prescriptive easement prior to the acquisition and that the access provided by the new highway had not therefore increased its value. In assessing compensation the RAC found that:

• (i) The value of the acquired land was CI$1.75 per square foot;

• (ii) The value of the retained land was CI$1.25 per square foot;

• (iii) An area equal to 5% of the total area of the retained land now has no value as a result of severance; and

• (iv) An area of 150,000 square feet of the retained land was reduced in value by 10% as a result of injurious affection by the new highway;

On that basis the total compensation awarded to the owners by the RAC was CI$342,886.153, and they also awarded them their costs to be assessed or agreed.

THE LEGISLATION

5 Appeals from the RAC are governed by paragraph 8 of the Second Schedule to the Roads Law which provides —

‘8. (1) The Roads Authority or any person interested in the portion of land or having a right over such land who is aggrieved by an award of the Committee under this Law may, within 21 days of the date of the award or such longer period as the Grand Court may for good cause allow, appeal to the Grand Court on the ground that —

(a) the extent of the interest or right in the portion of land has been wrongly determined; or

(b) the Committee has erred as a matter of law.

(2) Proceedings under subparagraph (1) may be regulated by rules of court.

(3) On the hearing of an appeal brought under this paragraph, the Grand Court may make such order (including an order for costs) as it thinks fit.’

6 Although no specific rules to regulate such appeals have been made under subparagraph (2), there are general provisions governing appeals from statutory tribunals in Order 55 of the Grand Court Rules. GCR Ord. 55 derives from, and is materially the same as, Ord. 55 of the Rules of the Supreme Court of England and Wales as they stood prior the coming into effect of the Civil Procedure Rules. The Order applies to ‘every appeal which by or under any enactment lies to the Court from … any tribunal or person.’ There is no dispute between the parties that those rules apply in this case. The key provision governing how such an appeal will conducted is Ord. 55, r. 3(1), which provides —

‘(1) An appeal to which this Order applies shall be by way of rehearing and must be brought by original motion.’

THE APPEAL TO THE GRAND COURT

7 The NRA appealed the assessment of compensation to the Grand Court by Notice of Appeal dated 18 October 2011 on five grounds, which in summary were that the RAC —

(i) determined wrongly the extent of the claimants' interest in Block 28C parcel 1 by deciding that it had the benefit of a prescriptive easement;

(ii) erred in law in deciding that there was a prescriptive easement;

(iii) erred in law in deciding that planning permission for low density residential development would have been granted;

(iv) erred in law in deciding that the land should be valued as though satisfactory access were available and planning permission for low density residential development would have been granted with access by means of the alleged easement;

(v) erred in law in deciding that the retained land had not increased in value as a result of the access provided by the new road.

8 Grounds (ii) to (v) assert errors of law, and so, on their face, fall within subparagraph 8(1)(b) of the Second Schedule to the Roads Law. We do not express any view at all on whether that will prove to be so when the grounds are argued. Ground (i) does not on its face assert an error of law, and there is an issue whether, properly considered, it falls within subparagraph 8(1)(a) as concerning the extent of the claimants' interest or right in the land. We deal with that below. We note that Mr. Roots QC asserts that all the points he wishes to raise on this ground of appeal are also points of law, and so within paragraph 8(1)(b) in any event. We do not need to consider that and again express no view on it.

THE CHIEF JUSTICE'S RULING

9 As explained at the outset, the ruling which is the subject of this appeal was given on crosssummonses, the NRA seeking a stay on payment of the award pending the determination of its appeal, and the owners asking the court to order immediate payment of the compensation. Thosesummonses, along with a further one which is not material to this appeal, came before the learned Chief Justice on 26 January 2012. The Chief Justice correctly determined that, in considering the application for a stay, he had to consider, among other things, whether the appeal had a realistic prospect of success. In that regard he was faced with a jurisdictional argument from the claimants that the prescriptive rights issue was not within subparagraph 8(1)(a). At the time the claimants were arguing that subparagraph 8(1)(a) was limited to the resolution of issues of title between competing claimants. That construction is no longer pursued, but it shaped the Chief Justice's approach. In particular, in rejecting the claimant's narrow construction, he concluded that the terms of subparagraph 8(1 )(a) —

‘29… . imply a right of appeal, for determinations including as to whether thevalue of the interests or rights has been accurately and properly assessed by the RAC.’

In doing so he considered that he was acting consistently with an earlier decision of Quin J inConcept Limited v National Road Authority 2009 CILR 629.

10 The Chief Justice then went on, although it may not have been...