Ackermon v CI Govt

• Jurisdiction: Cayman Islands
• Judge: (Quin, J.)
• Judgment Date: 01 May 2013
• Date: 01 May 2013
• Court: Grand Court (Cayman Islands)

Grand Court, Civil Division

(Quin, J.)

ACKERMON

and

GOVERNMENT OF THE CAYMAN ISLANDS and NATIONAL ROADS AUTHORITY

N. R.F.C. Timms, Q.C. and M.Goodman for the applicant;

Ms. R. Sharma, Senior Crown Counsel, for the respondents;

Lord Goldsmith, Q.C. and M.Imrie for Dart Realty (Cayman) Ltd.

Cases cited:

(1) A v. Essex County Council, [2011] 1 A.C. 280; [2010] 3 W.L.R. 509; [2010] 4 All E.R. 199; [2010] UKSC 33, applied.

(2) Golden Accumulator Ltd. v. Cayman Islands Monetary Auth., 2004–05 CILR 565, referred to.

(3) McGlinn v. Waltham Contractors Ltd., [2005] 3 All E.R. 1126; [2005] B.L.R. 432; [2005] EWHC 1419 (TCC), referred to.

(4) O”Reilly v. Mackman, [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, applied.

(5) R. v. Avon County Council, ex p.Terry Adams Ltd., [1994] Env. L.R. 442, applied.

(6) R. v. Chief Const.(Devon & Cornwall), ex p.Hay, [1996] 2 All E.R. 711, applied.

(7) R. v. Cotswold District Council, ex p.Barrington Parish Council(1998), 75 P. & C.R. 515, referred to.

(8) R. v. Dairy Produce Quota Tribunal, ex p.Caswell, [1990] 2 A.C. 738; [1990] 2 W.L.R. 1320; [1990] 2 All E.R. 434; [1990] C.O.D. 243, applied.

(9) R. v. Ebanks, ex p.Henderson, 2009 CILR 48, referred to.

(10) R. v. Health Secy., ex p.Furneaux, [1994] 2 All E.R. 652; (1993), 17 BMLR 49, applied.

(11) R. v. Housing Benefit Review Bd. of Borough of Milton Keynes, ex p.Macklen, English Q.B.D., April 30th, 1996, unreported; digested at [1996] C.L.Y. 5445, referred to.

(12) R. v. Inland Rev.Commrs., ex p.National Fedn.of Self-Employed & Small Businesses Ltd., [1982] A.C. 617; [1981] 2 W.L.R. 722; [1981] 2 All E.R. 93; [1981] STC 260, referred to.

(13) R. v. Stratford-on-Avon District Council, ex p.Jackson, [1985] 1 W.L.R. 1319; [1985] 3 All E.R. 769, referred to.

(14) R. v. Trade Secy., ex p.Greenpeace Ltd., [1998] Env. L.R. 415, applied.

(15) R. v. Transport Dept., ex p.Presvac Engineering Ltd., [1992] 4 Admin L.R. 121, referred to.

(16) R.(Finn-Kelcey) v. Milton Keynes Borough Council, [2009] Env. L.R. 17; [2008] EWCA Civ. 1067, referred to.

(17) Trim v. North Dorset District Council, [2011] 1 W.L.R. 1901; [2011] P.T.S.R. 1110; [2011] 2 P. & C.R. 7; [2010] EWCA Civ 1446, applied.

Legislation construed:

Grand Court Rules, O.53, r.4(1): The relevant terms of this paragraph are set out at para. 11.

Administrative Law-judicial review-time limit-three-month time limit under GCR, O.53, r.3 puts limit to basic requirement of promptness-time begins to run at point applicant has enough information to decide whether to make application-revision of decision by public body not to mean continuous decision-making process where starting point impossible to ascertain if discrete potential starting points available

Administrative Law-judicial review-time limit-extension of time-not granted if applicant has enough information to decide whether to seek review; capable of seeking review (e.g. sufficient funds); or decides not to (or fails to act on decision to) seek review before expiry of time limit-applicant”s decision that legal aid not viable not to make applicant incapable of bringing review

Administrative Law-judicial review-time limit-extension of time-not granted if would cause substantial hardship and prejudice to respondent or detrimental to good administration-applicant to minimize hardship by seeking judicial review as soon as possible to put third parties on notice-not sufficient to protest decision publicly-detrimental to good administration if extension of time would deter involvement of potential third parties

The applicant applied for judicial review of the first respondent”s decision to enter into an agreement for major commercial building developments which included, inter alia, the closure of certain roads.

On June 15th, 2011, the respondents announced a proposed agreement with a third party (‘DRCL’), which included, as part of the commercial development of the area, inter alia, the closure of West Bay Road and the construction of a new road to reroute the traffic. Large areas of the land around West Bay Road were owned by DRCL and it had, during April 2011, closed a number of public access points which ran over its land and connected the road with Seven Mile Beach, although it had re-opened these access points after a meeting with a pressure group (of which the applicant was a member).

The closure of West Bay Road was opposed by this group, which raised a petition and held rallies protesting the closure, but the agreement was

signed on December 15th, 2011 and the work on the bypass began on January 18th, 2012. On February 23rd, 2012, the group approached a number of local law firms in an attempt to initiate judicial review of the decision but none would accept the case, mainly on the grounds of capacity or conflict of interest. The group decided, on March 13th, 2012, that it was not practicable to pursue judicial review at that stage due to a lack of information about the agreement released by the respondents, although it did continue the campaign against the closure by sending letters explaining its concerns to the Premier. The group reviewed its decision not to bring judicial review on April 13th, 2012 and by the following month, having raised sufficient funds to seek advice on judicial review, found that there were serious issues which could be reviewed by the court.

The terms of the agreement were leaked to the Cayman News Service on July 12th, 2012, although it had already been subject to two variations since it had been signed. The group, however, closed the campaign to apply for review on October 25th, 2012-having determined that it did not have sufficient funding and having discounted the obtaining of legal aid as not viable-although it did continue to protest against the closure of the West Bay Road. The applicant applied for legal aid on February 15th, 2013, which was granted on February 20th, 2013, engaged his attorneys on February 25th, 2013 and brought the present application on March 8th, 2013, a day after the possibility of a third amendment to the agreement had been reported. The closure of the West Bay Road was gazetted on March 13th, 2013, and the road was closed on March 17th, 2013.

The Grand Court (Henderson, J.) refused an ex parte application for leave to bring judicial review on the ground that there had been excessive delay in the bringing of the application. The applicant therefore brought the present inter partes application for leave.

The applicant did not concede that the three-month time limit for applying for judicial review under GCR, O.53, r.3 had expired, as the decision to be reviewed had been a part of a continuous decision-making process and the respondents had not disclosed enough information to allow the applicant to know when the final agreement had been reached. Further, as it was impossible to know whether the leaked agreement represented the final decision, it could not constitute a starting point. If the time limit had been exceeded, the applicant submitted that he should be entitled to an extension allowing him to bring the review. The application could not have been made any earlier as not only was there a lack of information on which to base a challenge, but the pressure group had also been unable to obtain any legal representation.

The respondents submitted in reply that the three-month period had expired. The time limit had begun either when DRCL had first begun closing access points (in April 2011); when the proposed agreement had been announced (June 15th, 2011); when the agreement was signed (December 15th, 2011); or, at the very latest, when the agreement was leaked to the public (July 12th, 2012). Moreover, the requirement under

GCR, O.53, r.4(1) that an application had to be brought ‘promptly’ took priority over the three-month limit and, as the applicant had waited until DRCL had made substantial investments, he could not be regarded as having acted ‘promptly.’ The respondents further submitted that the applicant was not entitled to an extension of time. An extension could only be granted after considering whether there was an objectively reasonable excuse for the delay; whether hardship or prejudice would occur to a third party; whether there would be a detriment to good administration; whether the public interest required leave to be granted in spite of any damage or detriment; and the strength of the applicant”s claim. The pressure group”s inability to obtain legal advice, however, was not a reasonable excuse, as demonstrated by the speed with which the applicant was able to make his application. Further, an extension would cause considerable damage to public administration-as the agreement had been beneficial for the Cayman economy-and to DRCL, which had made significant investments and entered into a substantial number of contracts as a result of the agreement.

DRCL submitted that the decision of December 15th, 2011 was not part of a continuum simply because amendments had been made to it. Although the applicant had not known the specifics of the agreement, enough information had been disclosed about the agreement for him to decide whether or not to bring judicial review. The pressure groups had deliberately chosen not to make an application before the expiry of the time limit and, given the substantial investment already made in accordance with the agreement, to review it now would cause considerable hardship.

Held, dismissing the application:

(1) The application had not been made promptly and so did not comply with GCR, O.53, r.3. The three-month time limit in that rule was an outside limit to the basic requirement of promptness and the time limit for making an application for judicial review would be scaled down to ensure that an application could not be made when it would be unfair to the respondent or any interested third party. DRCL was required to make significant...